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I. Introduction
On February 4, 1969, Nelson Mandela wrote a letter from prison to two of his children, Zindzi and Zenani. In it, he mentioned a prior correspondence with Zindzi where she described her heart as "sore" because of her father’s absence and inquired about his return. Mandela responded that he did not know when he would return and instead reassured his young children that he was "full of strength and hope," only longing to be with them.[1] In July 1969, Mandela faced another painful reminder of the estrangement incarceration produces when prison authorities denied him permission to attend the funeral of his eldest son, Thembi, who died in a tragic car accident.[2] A year later, in August 1970, after learning his family was being harassed by authorities, Mandela described his anguish as being "soaked in gall, every part of me, my flesh, bloodstream, bone and soul, so bitter am I to be completely powerless to help you in the rough and fierce ordeals you are going through."[3]
These snippets of Mandela’s prison correspondence capture experiences common to the incarcerated, regardless of their station in life. To be confined for prolonged periods means enduring features, such as familial estrangement, inherent to the institution of prison wherever it is located.[4] The trauma—psychological, emotional, and physical—associated with confinement is implicitly, if not explicitly, accepted as a tortuous, but reasonable element of punishing every jail-worthy crime.[5] In the centuries since its introduction, modern prison has become ubiquitous with criminal punishment everywhere and the enterprise is presented as not simply a more "humane" alternative to corporal punishment, but as the only available option. The original rehabilitative objective of imprisonment, inspired by its Quaker origins, is effectively obsolete now, only offered to justify a prisoner’s reentry into society, but expected to occur despite prison, not because of it.[6] Since its origins though, the modern prison has been subject to widespread criticism. Even the English writer Charles Dickens registered his distaste for prison after a visit in 1842 to Philadelphia’s recently established Eastern State Penitentiary, observing that "rigid, strict and hopeless solitary confinement" was "cruel and wrong."[7] More recently, arguably stemming from increased awareness of problems with American "criminal justice," a renewed interest has emerged in reimagining punishment for a future world without prisons.[8]
The prevailing critique of prisons today tends to be American-centric, where prison is seen as a continuation of the United States’ unique history of racial violence. Arguments against incarceration are responsive to systemic factors underlying America’s prison crisis; abolitionist ideas from other parts of the world rarely inform this critique.[9] The operating assumption is that anti-carceral thinking is only produced in the United States or Europe; other populations are presumed to be less critical of the idea of prison or simply reconciled to its inevitability.[10] In actual fact, the Global South contains its own discourse on abolition, independent of any Anglo-European influence, and offers valuable insights for anti-carceral thinking generally. The discourse is anchored by a belief that long-term confinement is unethical, and prison is an immoral institution; there is comparatively less interest in the systemic shortcomings of any particular criminal justice system.[11] Among the most prominent voices in the Global South critiquing prisons are scholars of Islamic law. Their approach interrogates long-term imprisonment with arguments grounded in religious scripture or inspired by values derived therefrom. Their critique is both moral and legal, because the two concepts are inextricably linked for Islamic law—a law sourced from religious texts and elucidated by jurists trained in religious sciences. Put simply, hardly anything can be both immoral and legal in a system that at once punishes criminality as well as sinfulness.[12]
These two types of moral critique, circumstantial and conceptual, described above and elaborated below, include strong arguments for why confinement as punishment is problematic. Yet they are rarely considered alongside each other. The purpose of this essay is to explore the abolitionist views of one contemporary Muslim thinker, Jāvēd Aḥmad Ghāmidī, then consider them in light of arguments made in the American context, specifically by the scholar–activist Angela Y. Davis.[13] Unlike Davis, abolition is not a primary focus for Ghāmidī; it is, rather, a rare departure from most of his other writings discussing traditional topics in Islamic jurisprudence. The fact that he chose to write on the subject conveys the legal significance he attaches to the moral shortcomings of using long-term imprisonment as criminal punishment.
Prior to examining the moral critique of imprisonment, a cursory introduction to the history of prison is useful. As noted earlier, the modern institution of prison came about as a more civilized alternative, at least in theory, to the system of corporal punishment that existed in Europe. The severity of corporal punishment was akin to torture; between 1780 and 1820, Europe and the New World developed penitentiaries built on the idea of strict discipline and regiment as an avenue for rehabilitation.[14] The penitentiary as a place for both retribution and rehabilitation was a novel approach to punishment, first appearing in the United States around the time of the American revolution.[15] Prior to this, prisons were largely places of detention for those awaiting the administration of corporal punishment; prison itself had not been punishment.[16] This changed by the eighteenth century in Europe and nineteenth century in the United States: imprisonment became the "principal mode of punishment."[17] In the United States, the new system of long-term imprisonment eventually led to an exponential growth in the prisoner population, a phenomenon now known as "mass incarceration."[18]
Elsewhere, colonial rule introduced criminal justice systems with prison as a form of punishment into Asia and Africa.[19] Prior to that, imprisonment was used in a more limited manner, but not as a form of punishment. In the premodern Islamic legal context, confinement was strictly limited by jurists as a means of temporary detention.[20] Generally speaking, Islamic legal treatises contain both punitive and non-punitive response to crimes. For the former, the focus is largely on corporal punishment utilized in three main categories of punishment: hudūd (explicitly delineated in Islam’s core sources), retaliatory (qiṣāṣ) and discretionary (taʿzīr). Non-punitive responses include payment of financial compensation (diya) to the victim or their next of kin.[21] Historically, the writing of premodern Muslim jurists demonstrates a reluctance to utilize prison as punishment in any sense.[22] Unlike in the United States, the Islamic legal tradition’s criticism of long-term imprisonment does not arise out of a response to particular social conditions that disproportionately impact certain groups. Since prison was not the norm, it was often not significant enough a topic to receive much treatment in medieval Islamic legal treatises. When it was discussed, there was typically a critique along with an explanation of the distinction between permissible temporary detention and objectionable long-term imprisonment.
II. The Conceptual Moral Critique: Jāvēd Aḥmad Ghāmidī
Building on this background, the views of contemporary jurists of Islamic law on long-term imprisonment might be divided into three broad viewpoints. First is a view that permits long prison sentences as a type of discretionary punishment (taʿzīr). These jurists recognize that long-term imprisonment is generally absent from the Islamic historical record but utilize other jurisprudential ideas to empower political authorities with the discretion to legislate prison as punishment.[23] Second is the view that incarceration is impermissible because it subverts Islamic law by replacing scripturally prescribed, corporal punishment with long-term confinement. This position does not critique prison per se, but laments how imprisonment is used to bypass scripturally prescribed punishments.[24] The final viewpoint rejects the entire idea of long-term imprisonment as a form of punishment because it is fundamentally immoral and, since it is immoral, it is also effectively impermissible under Islamic law. This in effect is the "abolitionist" position within Islamic legal discourse. In the contemporary period, one prominent voice representing this position is the Pakistani religious scholar and public intellectual Jāvēd Aḥmad Ghāmidī (b. 1951).
Born to a peasant family in the Punjab region (Pakistan), Ghāmidī trained in both traditional Islamic sciences and at secular universities: his early education included secular subjects, Arabic, Persian and the Dars-e Nizāmī curriculum (1959–66).[25] He then studied philosophy, English literature, and Islamic studies at Government College in Lahore (1968–73). During this period, Ghāmidī began associating with the famous theologian and political theorist, Abū ’l-ʿAlāʾ Mawdūdī (d. 1979), and briefly joined Jamāʿat-e Islāmī. From 1973 to 1983, he actively studied under his most influential teacher, Amīn Aḥsan Iṣlāḥī (d. 1997).[26] Ghāmidī is the author of a number of books, including his magnum opus, Mīzān ("Balance"), on theology, legal theory, ethics, and substantive law.[27] His main ideas on prison abolition appear in a short piece, in Urdu, entitled "Qayd kī Sazā" ("Prison as Punishment"), published in July 1989.[28] His abolitionist ideas can also be found in another piece from 1993: "Hudūd va Taʿzīrāt: Chand aham mabāḥith" ("Hudūd and Discretionary Punishment: A Few Important Points").[29]
To properly situate Ghāmidī’s article on "Prison as Punishment," it is important to understand the context in which it was written. While Angela Davis’s work, discussed later, emerges out of a history of racial violence and discrimination in her context, Ghāmidī’s piece seems to take advantage of a particular moment in Pakistan’s legal history to offer a conceptual critique of confinement. When Ghāmidī wrote his article Pakistan was enduring a decade-long debate over Islamic reforms in the country including to its legal system.[30] Prison was not the only reform-related topic that Ghāmidī commented on, but it proved to be the least controversial: anti-carceral ideas resonated with the traditional approach to punishment under Islamic law.[31]
The immorality of incarceration is fundamental to Ghāmidī’s entire argument for abolition. While Ghāmidī’s context is one of a state still grappling with the legacy of colonialism, his abolitionist reasoning focuses on prison in the abstract and not simply as a product of that imperial history. In other words, his argument does not rest on demonstrating the immorality of circumstances that produce prisons but rather attacks the very concept of prison itself. In contrast to Davis, Ghāmidī’s critique might be characterized as a "conceptual moral critique." His first step is to immediately engage the specter of morality by disassociating incarceration from the sacred, arguing that prison is an institution "human beings have devised for themselves" not one that is part of a "divine" plan. Since prison has no celestial mandate, it can claim no sacred sanctity and criticism of the institution can propose abolition without contravening religious sentiments. Having situated prison outside the sacred, Ghāmidī issues a scathing moral assessment, calling prison among the "enormities" humans have created that represent "the worst forms of oppression" (badtarīn ẓulm).[32] In fact, he goes further and categorizes incarceration as among "the worst crimes" (badtarīn juram) against humanity.[33] While acknowledging the historic presence of prisons, Ghāmidī distinguishes between the temporary nature of confinement in the past as compared to today.[34] He considers long-term imprisonment a practice inherited from Western countries as a result of their global hegemony.[35] This is the final part of his framing: having placed prison outside the sacred, Ghāmidī now makes it foreign to his context. These rhetorical moves allow moral criticism of prison to be more easily received since they threaten neither religious nor national identity.
Building on this framework, then, Ghāmidī structures his argument for the immorality of incarceration around three primary ideas: harm to the individual, harm to the community, and implausible rehabilitation.
a. Harm to the Individual
Ghāmidī initiates his critique by arguing that long-term imprisonment is the cause of psychological and emotional harm to the individual which should be considered immoral for several reasons. He highlights a distinct feature of incarceration that contributes to its immorality: the idea of "perpetual" harm. The idea is simply that because imprisonment persists for an extended period of time its harms are revisited daily.[36] As Ghāmidī notes, this recurring and persistent harm torments the "hidden recesses of a person’s core personality" (andar chupī huwī us kī aṣl shakhṣiyyat).[37] The very nature of prison itself becomes a source of this torment, especially because an individual forfeits control over their body and are left completely at the mercy of others. Ghāmidī bemoans the fact that a person’s "rising, sitting, eating, drinking, sleeping, waking, and even . . . relieving themselves" are out of their control. For Ghāmidī, this state of being leads to a loss of dignity (ʿizzat-i-nafs) followed by an overwhelming need for the individual to find a way to liberate themselves and recover their "complete self" (apnī wujūd kī takmīl).[38]
Alongside the psychological, Ghāmidī also argues that imprisonment inflicts serious emotional harm on the imprisoned by depriving them of any connection to their closest kin. This is further evidence of how imprisonment leaves an individual incomplete, withdrawing them from sources of affection and treating them as devoid of emotion. Echoing the sentiments in Mandela’s prison correspondence, Ghāmidī suggests that prison forces an individual to suppress their innate desire for emotional connection to their kin, a hardship that, he says with reference to Muslim scripture, even God never demands.[39] The subtext is clear: this human institution is not only inhumane, but ungodly. Reverting to scripture, Ghāmidī describes the harm prison causes the individual as one that leaves them in a state of "neither dying nor living" (lā yamūtu fīhā wa lā yaḥyā): words that the Qurʾān uses to describe hell (Q 87:13).[40] Ghāmidī seems to be saying that prison’s psychological harm negates the individual self, while its emotional harm negates the relational self.
b. Harm to the Community
For Ghāmidī, the second argument for the immorality of incarceration is prison’s harm to the community; what we might think of as collateral punishment.[41] He notes that prison is not simply punishment for the criminal; it becomes a punishment for close relations who committed no wrong. This harm is most devastatingly experienced by the prisoner’s family, especially the spouse who suffers "psychologically," "socially," "financially," and "ethically" while trying to survive the absence of their marital partner.[42] Similarly, Ghāmidī notes the harm caused to children left with the damaging choice of either avoiding any contact with their imprisoned parent or suffering the trauma of visiting them in prison, locked in a cage. Neither option is acceptable to Ghāmidī and he returns to the idea of perpetual harm, noting how the child who visits their parent in prison must cope with the renewal of their trauma during each visit; a process with destructive consequences for their personality.[43] He asks how society can reasonably expect any child to develop a stable (tawāzan) personality that is not hostage to raw emotions (jazbāt) stirred by this sustained trauma.[44] Furthermore, he rhetorically wonders "what precise justification can the classical works on ethics present to these children" to explain why they must be punished with this type of estrangement? He seems to be probing a deeper philosophical question about the application of our theories of punishment beyond the individual and to the community. In this way, Ghāmidī is placing the imprisoned individual in a larger ecosystem of human connections and challenging the idea that long-term incapacitation is narrow in its impact. It is a concern expressed in personal terms by Davis, when she recounts how during her imprisonment she thought of her mother and father and "hoped they would make it through this ordeal."[45]
c. Implausible Rehabilitation
The final argument Ghāmidī makes critiquing prison arises from his skepticism of the utilitarian "goals" this form of punishment is supposed to achieve. While deterrence and incapacitation are most often presented as objectives for imprisonment, rehabilitation remains an important underlying rationale for prisons, despite having fallen out of favor.[46] From the origin of prisons as a Quaker project for individual redemption through self-reflection to the very function of parole boards, rehabilitation has been instrumental in rationalizing incarceration.[47] One might even argue that without the possibility of rehabilitation, no matter how implausible, prison as an institution seems especially inhumane. For his part, Ghāmidī considers the objective of prison rehabilitation as necessary for any morally "reasonable society." As he notes, alongside disciplining (tādīb) and deterring (tanbīḥ) criminality, any reasonable society should want its criminal actors to be rehabilitated (iṣlāḥ). And, if this is the goal, imprisonment as an avenue to achieve this rehabilitation is patently absurd (ṭurfah-yitamāshā) given the very nature of prison.[48]
In Ghāmidī’s view, it is self-evident that effective reform of any individual will be heavily influenced by the company (ṣuḥbat) they keep. Hence, he is perplexed by carceral states that seek to reform criminals by either isolating them or separating them from the most likely sources for positive intervention in their lives: community, family, and kinfolk.[49] He asks quite incredulously: what rehabilitation can we reasonably expect will result from prolonged confinement in the company of other criminals? Ghāmidī argues that common sense requires any society truly interested in transforming criminals into productive members of the community to create opportunities consistently and constantly for that to happen.[50] In addition, he creates a greater moral responsibility to address societal factors producing criminal behavior.
Let me conclude with a few broad thoughts on Ghāmidī’s ideas on abolition. First, they represent a rare instance where an Islamic scholar steps outside purely religious arguments and offers a moral critique in the capacity of a public intellectual.[51] Ghāmidī focuses on the carceral system’s ethical travesties, philosophical shortcomings, and the incongruence between its goals and realities. This is not to say that he avoids discussing religion; Islam is always operating in the background as the core value system upon which his critique is based. Although he does not classify prison with religiously and legally loaded terms like "forbidden" (haram), he implies as much by stating unequivocally that there is "no conception in Islamic law’s core sources of confining people to prison cells for years on end."[52] The implication seems to be that any government that uses prison as punishment diminishes its claims to being "Islamic."
Second, unlike others who are willing to accommodate the idea of prison or even advocate ways in which it can be made morally acceptable through reform, for Ghāmidī, prison appears virtually irredeemable. In his view, prison inflicts harm disproportionate to any criminal act and is generally unable to rehabilitate. It should be noted though that Ghāmidī does not eschew the idea of punishment itself; he is simply arguing against this type of punishment.[53] Finally, Ghāmidī wrote his piece when American "tough on crime" rhetoric was peaking, culminating in the now infamous Violent Crime Control and Law Enforcement Act of 1994. Not surprisingly, he makes no reference to this or any other Western discourse in his writing. He speaks of similar challenges in his own context but uses moral arguments with universal application. It is indicative of the fact that the Global South has its own discourses on areas of shared concern, with unique insights that might provide helpful perspectives beyond its borders.
III. The Applied Moral Critique: Angela Y. Davis
Having discussed Ghāmidī’s ideas above, let me briefly juxtapose them to the approach of Angela Y. Davis (b. 1944), among the most prominent thinkers in the Anglo-American abolitionist discourse.[54] Prison has consistently remained a focal point in Davis’s writing and activism, both informed by her own experience as a prisoner and her scholarship. In Davis’s assessment, the "gravity" of the growth in the American prison population is even more pronounced if we consider the fact that the U.S. population is less than 5% of the world’s total population but makes up "more than 20% of the world’s combined prison population."[55] For some critics of American criminal justice, mass incarceration is the by-product of over-criminalization and the proliferation of new criminal laws by politicians seeking to burnish their "law and order" credentials with voting publics.[56] Davis’s scholarship suggests more insidious reasons for the dramatic growth of the U.S. prison population: historic racism and the prison–industrial complex. She considers both indicative of a general indictment of American criminal justice and demonstrative of the immorality of incarceration. These reasons behind the growth of prison populations supply what I term an "applied moral critique" of prison in Davis’s thought.[57]
a. Historic Racism
For Davis, there is an obvious connection between the historic experience of race in America and the current prison crisis. Statistics show that by the end of 2011, the imprisonment rate for African American males was 6.3 times that of white males.[58] This connection is not a recent phenomenon and Davis forthrightly suggests a correlation between the abolition of slavery and the authorization of slavery as punishment. Emancipation and authorizing of penal servitude created an "immense black presence within southern prisons" and essentially transformed prison into a punishment to manage former slaves.[59] To this end, Davis notes the development of "Slave Codes" and "Black Codes" that were meant to police Black populations for relatively minor behavior such as "vagrancy, breech of job contracts, absence from work, the possession of firearms, insulting gestures or acts."[60] In her view, once freed, Black people simply moved from a situation where their relationship with the state was mediated by a master to one where it was unmediated; they moved from a status of slave to that of criminal.[61] Her concern, then, is specifically with the way "the prison system in the US took up and was bolstered by historical forms of racism and how it continues to play a critical role in the racialization of punishment."[62] In that sense, for Davis, prison has come to occupy a similar place to slavery and lynching, in that it is a racist institution that "many, if not most, could not foresee" would ever decline and collapse.[63] As she notes:
If we are already persuaded that racism should not be allowed to define the planet’s future and if we can successfully argue that prisons are racist institutions, this may lead us to take seriously the prospect of declaring prisons obsolete.[64]
The immorality of incarceration, in Davis’s eyes, is connected to the immorality of racism. Prison as an institution is infused with racism—from its origins to the manner in which it is perpetuated—and thus must necessarily be immoral.
b. Prison-Industrial Complex
The second component of Davis’s moral critique of incarceration is her interrogation of prison as a product of the prison–industrial complex. Here, her argument turns from race to class, and she offers a distinctly Marxist analysis of the connection between prisons and the profit-making motives of corporations. She notes that the "drive to produce more prisons" and fill them with prisoners came in the 1980s under the political banner of getting "tough on crime." Incarceration performed the task of incapacitation, removing criminal elements from communities in order to make them safer. Yet, Davis points out that the "practice of mass incarceration" during this period "had little or no effect on official crime rates." The result was not safer communities but just "larger prison populations."[65]
Hence, "imprisoned bodies," the majority of which were those of people of color, became "sources of profit" that "devour public funds" that could otherwise be channeled into social programs.[66] This use of the prisoner as a source of profit is nothing new, as she explains. The prison–industrial complex has historically used prisoners as subjects in medical research, the results of which have served private corporations.[67] For instance, she mentions the career of Albert Kligman, a research dermatologist at the University of Pennsylvania who conducted "hundreds of experiments" on prisoners in what were later recognized as "unethical research methods."[68] The trend of privatizing prisons is indicative of the rising presence of corporations in the "prison economy."[69]
For Davis, the privileging of profit over people is indicative of the moral bankruptcy within global capitalism. The very capitalist-driven process that fuels the prison–industrial complex is also the source of destruction for communities which subsequently produce the prisoners. Corporations migrate around the world in search of the cheapest labor pools. The departure of these corporations usually undercuts the economic base of communities, affecting other social programs and services. Communities are left damaged and from them emerge "perfect candidates for prison."[70] As Davis notes, "mass imprisonment generates profits as it devours social wealth, and thus it tends to reproduce the very conditions that lead people to prison."[71] In this way then, it exposes another aspect of the immorality of incarceration.
IV. Conclusion
The above discussion offers an opportunity for us to expand our thinking on prison abolition by engaging discourses outside the Anglo-European tradition. The staggering growth of our prison populations in the United States in this era of mass incarceration have brought anti-carceral ideas into the mainstream. At the same time, the state of our society and its criminal justice system dominates the types of arguments made to challenge imprisonment. The moral critique lingers in the shadows, ever-present but of secondary importance. For non-Western traditions, unencumbered by this unique historical experience of mass incarceration and its precursors, the argument for abolition is often strictly a moral one. This is especially true for the Islamic legal tradition with its religious orientation inherently engaging questions of morality. Placing anti-carceral arguments from Islamic thought alongside American ones offers an opportunity to investigate points of alignment and avenues to learn from the differences. The ideas of Davis and Ghāmidī serve that purpose here. Their approaches to the immorality of incarceration are distinct, with Davis relying on the experience of prison and its inexorable connection with grave historical wrongs to formulate her stance while Ghāmidī considers prison as fundamentally flawed regardless of context. These two types of moral critique, straddling the applied and the conceptual, not only demonstrate the basic immorality of incarceration, but that this sentiment is shared across geographies and traditions.