Friday, 19 June 2015

Islam and the Death Penalty

[This blog post is an example of the materials that participants on the Massive Open Online Course (MOOC) on the Meriam Ibrahim case on 22 June 2015, can expect to learn from. If you would like to participate in the course and learn more about Sudanese criminal procedure, family rights, freedom of religion and the role of social media in protecting human rights in Sudan and Africa, please see: BCU Law School MOOC Page and register at: http://xoodle.bcu.ac.uk/course/index.php?categoryid=40]

by Prof Jon Yorke, Professor of Human Rights[1]


Qur'an, Surat Al-Fātiĥah
(English translation: Pickthall)
In the name of Allah , the Entirely Merciful, the Especially Merciful.
Introduction
This document provides information to help inform political, legal and religious, dialogue at the bilateral and multilateral levels on the question of the legitimacy of the death penalty within Islamic law. What follows is an attempt to present a respectful reading of Islamic doctrine to create the impetus for tolerant discourse on this religious perspective on capital punishment. In all circumstances respect should be maintained towards the specific Islamic doctrine that is discussed. 
When discussing the death penalty with retentionist Islamic states it should be established to what extent the Shari'a is used to legislate capital crimes and proscribe methods of execution. Essentially, if the death penalty is legislated outside of any specific mandate within the Shari'a there is no theological bar preventing the discussions from being framed within the human rights discourse. In such circumstances there can be no theocratic claims to close the boundaries of the discussion of the punishment.
The human rights standards against the death penalty are well known,[2] and should be applied, including; the punishment is a violation of human dignity, the right to life, and the prohibition against cruel and inhuman punishment. These standards should be placed in context with the regional human rights principles formulated by the League of Arab States under the Arab Charter of Human Rights,[3] to encourage regional abolitionist mandates and engender greater support from the League, for the United Nations General Assembly Resolution on the Moratorium on the use of Death Penalty.[4]
However, and this is the main focus of the paper, if the death penalty is legitimised through exclusive and traditional interpretation of the Shari'a, it is very likely that these retentionist governments will seek to keep the discussions focused upon religious doctrine. In these circumstances the dialogue with Islamic states should not be that the non-application of the death penalty is exclusively an expression of human rights, but that it is also a fundamental tenet of the Shari'a itself. This is an important nuance for the discussion in affirming the legitimate place of Islamic theology.
A sensitive consideration of the death penalty in the Shari'a places its application within the theological expressions of, "peace", "mercy" and "repentance". It is clear that there are examples of the death penalty within the religious texts, but what is also clear, and should be discussed, is that there are prima facie competing theological themes. Discussions which weigh and interpret these themes can lead to a heightened application of peace, mercy and repentance, over the possibility of putting people to death through capital punishment. Of fundamental importance for this discussion is the need to reveal the eternal spiritual significance of putting a Muslim criminal to death. This punishment repudiates the possibility of repentance.
Below are the essential theological propositions and alternative interpretations (textual exegesis) to demonstrate the possibility of the non-application of the death penalty within the Shari'a. An appendix is also provided with key texts from the Qur'an and the Hadith, including the Arabic script.
Islamic Schools of Jurisprudence and Interpretation of the Shari'a
The Shari’a, Islamic law, is based upon two sources; the Qur'an (recording the spoken word of Allah and constitutes the principle teachings of the Shari’a) and theSunna (which includes the Hadith that records the sayings and actions of the Prophet Muhammad). These two sources are supplemented by the Fiqh (Islamic jurisprudence or the "science of law" [5]), which comprises the rulings of Muslim scholars.[6]
The Shari'a requires interpretation. Several schools of Islamic jurisprudence apply the, Shari'a – ilm usul al-fiqh ("the science of the principles of the interpretation of the law"[7]), and these schools have developed interpretive discourses known as Madhahib.[8] It is commonly stated that one of the most significant doctrinal questions for the Madhahib is whether the Qur'an and Sunna are to be applied literally, from their historical context, or whether the intent and purpose of the text can evolve to accommodate contemporary political, social and economic circumstances.
M. Cherif Bassiouni has identified that there are three broad approaches to the interpretation of the Shari'a, which are; "traditionalist," "fundamentalist," and "secular reformists."[9] With regards to the question of the death penalty, it appears that currently those who may be recognised as, "reformist," would be most willing to accommodate the restriction and non-application of the death penalty through an evolutive interpretation of the Shari'a, and also through universal and Arabic principles of human rights.[10] Those who are, "traditionalist", and/or, "fundamentalist", would currently be less willing to accommodate arguments that the non-application of the death penalty is a theological and thus, political, possibility, because through their textual exegesis the punishment is mandated and in the Shari'a.
Within the Shari'a there are three categories of crimes; HududQesas, and Ta'àzir.[11]
Hudud Crimes
The Hudud crimes (RiddaZenaBaghi and Haraba) allow for the prima facie possibility of the death penalty.
Ridda is apostasy, the renunciation of Islam by a Muslim. In the 7th Century, apostasy originally meant leaving the faith to join the enemies of Islam.[12] There are differing opinions as to whether leaving the faith is today a crime legitimately punishable by death. Firstly, this is because those who leave Islam are not necessarily joining the enemies of Islam, but are living their lives based upon other social beliefs. Secondly, there is a competing Islamic theological principle, in that religious compulsion is prohibited as specified in the Qur'an Surat al-Baqaraayah 256, which states, "[t]here shall be no compulsion in [acceptance of] the religion."  Thirdly, the punishment of death for Ridda eliminates the possibility of repentance (this is explained in greater detail below).
Zena is the crime of sexual immorality. There are specific requirements which must be met, including, that the intercourse must have been witnessed by four different people or those who performed the act must confess four times.[13] The requirement of four confessions has been interpreted to mean that the Prophet wanted to promote the beneficent, the exonerating, the oft-pardoning, nature of Allah.[14] This is evidenced by the Prophet turning his face away from the confessor four times, in an act of wanting to withhold the infliction of the death penalty (for further information, see below in Appendix 2).[15]
Baghi is rebellion or uprising, and involves an act of aggression.[16] The Qur'an does not specify a punishment for Baghi. The four Sunni schools provide the option of the death penalty, but also other penalties such as exile. The death penalty is not mandatory, but is permissible.
Haraba is identified as those who wage war against Islam and the legitimate rulers of Islamic societies. There are a variety of punishments which may be imposed, including, the death penalty, exile and having the criminal's hands and feet from the opposite side cut off.[17] The death penalty is not mandatory, but is permissible.
Qesas Crimes
Qesas crimes are those which result in crimes against the person, including the infliction of various examples of physical harm, through to the act of committing homicide. For these crimes, the victim or the victim’s family (if a homicide has occurred) has the right to inflict upon the criminal the same harm that was inflicted upon them, including up to death.[18] This is a form of quantitative retribution, most commonly expressed in the discourse on the death penalty as, "a life for a life," and in the Qur'an as, "[a]nd we ordain for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution."[19] However, for Qesas crimes, Diyya may be applied, which provides for victim compensation as an alternative to the administration of quantitative retribution. Muhammad Moheiddin Awad has identified the appropriateness of the primacy of Diyya over retribution, as it represents the preferable choice within the overall promotion of peace in Islam, and appropriately reflects the fundamental attributes of the beneficent and exonerating nature of Allah.[20]
Ta'azir Crimes
Ta'azir crimes are those which are formulated by Islamic theocracies through state legislatures. These crimes are not explicitly found within the Shari'a and thus are not categorically derived from the Qur'an or Hadith; for example, those Islamic countries which apply the death penalty for drugs offences – such as in Iran.  Bassiouni states that the, "penalty choices for these crimes reflect cultural perspectives and social policy choices."[21] There is nothing within the Shari'a to affirm that the death penalty must be applied for Ta'azir crimes. Furthermore, the diversity of punishments in different Islamic countries reveals that there is not a theological consensus on the application or even, the extent, of punishments for Ta'azir crimes.
Deterrence as the Theological Argument Against the Death Penalty
There appears to be a significant need for dialogue on the issue of whether the imposition of the death penalty as a principle of Islamic criminology, has been clearly demonstrated to be an effective deterrent against crime. There are those within Islam who question the solidity of the deterrence argument.[22] Any claims by Islamic governments that the death penalty provides the most effective form of deterrence need to be supported by verifiable quantitative data. Roger Hood and Carolyn Hoyle have analysed in-depth the criminological and legal aspects of the death penalty around the world, and have revealed through an assessment of the empirical studies that the death penalty fails to provide an adequate deterrent effect.[23] It must be explained that the deterrence arguments promoting the death penalty have failed empirically. Furthermore, the increase in executions in certain Islamic countries is ipso facto a practical demonstration of the failure of the deterrence argument.
Errors within the Capital Judicial Process
Within the Hadith there is explicit reference to the danger of error in the administration of punishments. Sunan Tirmidhi, states, "[i]t is better for a judge to make an error in acquittal than in conviction."[24] It should be emphasised in dialogue that with the existence of a capital judicial system there will always be the strong probability that innocent Muslims will be wrongly sentenced and wrongly executed. It is therefore appropriate for an interpretation to be offered that through the Shari'a the death penalty should be suspended as a principle of exceptional circumstances under the doctrine of "necessity" or darûra.[25] Consequently, in order for Islamic states to guarantee that innocent Muslims will not be executed, the capital judicial process should be repudiated. As Islamic countries seek to reflect the peace and mercy of Allah to the world, it is appropriate for Islamic theocracies to impose punishments which minimize, and not maximize, retribution. The non-application of the death penalty would be reflective of this. Finally, it should be considered that when a political system mandates and imposes a high degree of retribution through a wide scope of capital crimes, there is a possibility that Muslim criminals will be subject to capital crimes (under Ta'azir crimes) which Allah has not mandated, and would not intend to be mandated.
Conclusion: Advocating the Possibility of Repentance as a Reason for the Non-Application of the Death Penalty
The application of the death penalty makes it impossible for a criminal to, "repent," of their crimes; as repentance can only happen in this life, and not in the afterlife. It is a principle of Islamic theology that in Hudud crimes, repentance can be demonstrated thus bringing the Muslim back into a reconciled relationship with Allah and his or her fellow Muslims. For example, in the crime of Baghi (uprising against Islam) the Qur'anSurat al-Ma'idaayah 34, states, "Except for those who return [repenting] before you apprehend them. And know that Allah is Forgiving and Merciful." Bassiouni argues:
Repentance is surely grounds for remission of all penalties. Why repentance is not recognised and applied by contemporary Muslim legal systems, which apply the Shari'a, as part of contemporary theories of rehabilitation for crimes of offenders can only be attributed to their selective application of the letter of the law taken without regard for Shari'a's enlightened spirit.[26]
The impossibility of repentance following an execution must be an integral part of the dialogue with Islamic governments which impose the death penalty. It should be asked how this is consistent with the fundamental tenet of, "mercy," within Islam. In support of this argument and for the content of discussion for dialogue, there is a Hadith which emphasises the beneficent quality within Islam of averting punishments. In the Sunan Tirmidhi it states:
Aisha (Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him and give him peace) said: Keep the Muslims away from punishments as much as possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to make an error in acquittal than in conviction.[27]

[1] Research assistance provided by BCU Law Students: Sahliya Azeem, Amna Nazir, and Bhavinie Purohit.
[2] See, Roger Hood and Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, 4thed, (Oxford: Oxford University Press, 2008); William A. Schabas, The Abolition of the Death Penalty in International Law, 3rd ed, (Cambridge: Cambridge University Press, 2002); Jon Yorke (ed), Against the Death Penalty: International Initiatives and Implications, (Farnham: Ashgate Publishing, 2008); David T. Johnson and Franklin E. Zimring, The Next Frontier: National Development, Political Change, and the Death Penalty in Asia,(New York: Oxford University Press, 2009).
[3] The League of Arab States, Arab Charter on Human Rights, May 22, 2004, reprinted in 12 Int'l Hum. Rts. Rep. 893 (2005), entered into force March 15, 2008. The Arab Charterrecognises the inherent right to life (Article 5). Article 6, states, "Sentence of death may be imposed only for the most serious crimes in accordance with the laws in force at the time of commission of the crime and pursuant to a final judgment rendered by a competent court. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence." Article 7 (1) "Sentence of death shall not be imposed on persons under 18 years of age, unless otherwise stipulated in the laws in force at the time of the commission of the crime. (2) The death penalty shall not be inflicted on a pregnant woman prior to her delivery or on a nursing mother within two years from the date of her delivery; in all cases, the best interests of the infant shall be the primary consideration." Article 8 (1) "No one shall be subjected to physical or psychological torture or to cruel, degrading, humiliating or inhuman treatment." (2) "Each State party shall protect every individual subject to its jurisdiction from such practices and shall take effective measures to prevent them. The commission of, or participation in, such acts shall be regarded as crimes that are punishable by law and not subject to any statute of limitations. Each State party shall guarantee in its legal system redress for any victim of torture and the right to rehabilitation and compensation."
[4] UNGA Resolution, Moratorium on the Use of the Death Penalty, A/RES/67/176, 20 December, 2012.
[5] M. Cherif Bassiouni, Death as a Punishment in the Shari'a, in, The Death Penalty: Condemned, International Commission of Jurists, September, 2000, p. 66.
[6] William A. Schabas, 'Islam and the Death Penalty,' 9 Wm. & Mary Bill Rts. J. 223 (2000), p. 231.
[7] Bassiouni, supra, p. 67.
[8] For more information on the Madhahib, see Bassiouni, p. 66-73.
[9] In essence, Bassiouni identifies (pp. 69-71) "traditionalists" as those who represent the religious establishments, including the Islamic universities, and are literalists with certain aspects of purposive interpretation; "fundamentalists" are essentially literalists but dogmatic and promote political activism through certain forms of violence, and "secular reformists" use scientific knowledge for the interpretation of Islamic law and the address of contemporary problems.
[10] For example, Turkey.
[11] In the Hadith the death penalty is identified as "permissible" for three crimes:
"Ibn Mus 'ud (Allah be pleased with him) reported that Allah's Messenger (Allah bless him and give him peace) said, "The blood of a Muslim, who testifies that there is no (true) god except Allah and that I am Allah’s Messenger, does not become permissible except for one of three acts: a married person who commitszina, one soul for another (killed) soul, and a man who abandons his deen(religion) and departs from the Jamaa 'ah (of Muslims)," in, Sahih al-Bukhari, Hadith 6878; Sahih Muslim, Hadith 1676.
[12] Bassiouni, p. 75.
[13] For a woman confessing four times to sexual immorality, Sahih Muslim, Book 17, Hadith 4206. For an example of a man confessing four times to sexual immorality, see, Sahih al-Bukhari, Volume 8, Book 82, Hadith 814.
[14] In an example of zina the Prophet inferred that if the person committing zina and had made four confessions, is identified as "insane" this would prevent the death penalty, seeSahih al-Bukhari, Volume 8, Book 82, Hadith 814.  See also, Sahih Muslim, Book 17, Number 4206, where the Prophet asks, "Do you know if there is anything wrong with his mind?"
[15] See, Sahih al-Bukhari, Volume 8, Book 82, Hadith 814.
[16] See, Surat al-Hujuratayah 9.
[17] See, Surat al-Ma'idaayah 33.
[18] See, Surah Baqaraayah 178, "O you who believe! Al-Qisas (the law of equality in punishment)...but if the killer is forgiven by the brother (or the relatives, etc) of the killed against blood money, to the heir should be made in fairness." Surah al-Israayah 33, "...we have given his heir the authority (demand Qisas, law of equality in punishment or to forgive...)"
[19] Sura Ma'idahayah 45.
[20] For example see, Sura Ma'idahayah 34 and Sura ale-Imranayah 159; see also, Muhammad Moheiddin Awad, Bada'il al-Jaza’at al-Jina'ia fil Mojtama' al Islami (The Substitute Criminal Penalties in Islamic Societies) (1411 A.H., 1991 A.D.), cited in Bassiouni, p. 81.
[21] Bassiouni, p. 82.
[22] For example, see Islamic Scholar, Imran Hosein's website at,http://www.imranhosein.org/articles/islam-and-politics/88-hanging-as-a-deterrent--a-view-from-islam.html. Although it must be stated that he argues that the death penalty is justifiable within Islam.
[23] See, Roger Hood and Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, (4thed) (Oxford: Oxford University Press, 2008), pp. 317-349.
[24] Sunan Tirmidhi, number 1424.
[25] Joseph Schacht, Problems of Modern Islamic Legislation, 12 Studia Islamica 99 (1960), reprinted in, Ian Edge (ed), Islamic Law and Legal Theory, (Aldershot: Ashgate, 1996), p. 101.
[26] Bassiouni, p. 83.
[27] Sunan Tirmidhi, number 1424.

Islam and the Death Penalty: Key references from the Qur'an and Hadith


Compiled by Prof Jon Yorke
Selected verses (ayah) of the Qur'an and Hadith. Translation and Arabic text from, quran.com. Translation: Sahih International)
The Possibility of the Death Penalty
Sura Al-Isrā, ayah 33
Sura Al-Isra Ayah 33
(Translation: Sahih International)
And do not kill the soul which Allah has forbidden, except by right. And whoever is killed unjustly - We have given his heir authority, but let him not exceed limits in [the matter of] taking life. Indeed, he has been supported [by the law].

Non-Mandatory Death Penalty in Haraba Crimes
Sura Ma'idah, ayah 33
Sura Ma iDah ayah 33
(Translation: Sahih International)
Indeed, the penalty for those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption is none but that they be killed or crucified or that their hands and feet be cut off from opposite sides or that they be exiled from the land. That is for them a disgrace in this world; and for them in the Hereafter is a great punishment.

Non-Application of the Death Penalty for Baghi Crimes
Surah Hujurat, ayah 9
Surah Hujurat ayah 9
(Translation: Sahih International)
And if two factions among the believers should fight, then make settlement between the two. But if one of them oppresses the other, then fight against the one that oppresses until it returns to the ordinance of Allah . And if it returns, then make settlement between them in justice and act justly. Indeed, Allah loves those who act justly.

No Death Penalty for Zina crimes of Unmarried People
Surah Nur, ayah 2
Surah Nur Ayah 2
(Translation: Sahih International)
The [unmarried] woman or [unmarried] man found guilty of sexual intercourse - lash each one of them with a hundred lashes, and do not be taken by pity for them in the religion of Allah, if you should believe in Allah and the Last Day. And let a group of the believers witness their punishment.

No Compulsion in Islam
Surah al-Baqara, ayah 256
Surah al-Baqara ayah 256
(Translation: Sahih International)
There shall be no compulsion in [acceptance of] the religion. The right course has become clear from the wrong. So whoever disbelieves in Taghut and believes in Allah has grasped the most trustworthy handhold with no break in it. And Allah is Hearing and Knowing.

Compensation (Qisas) for Murder
Surah Al-Baqarah, ayah 178.
Surah al-baqara ayah 178
(Translation: Sahih International)
O you who have believed, prescribed for you is legal retribution for those murdered - the free for the free, the slave for the slave, and the female for the female. But whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct. This is an alleviation from your Lord and a mercy. But whoever transgresses after that will have a painful punishment.
Surah Ma’idah, ayah 45
surah Ma idah ayah 45
(Translation: Sahih International)
And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation for him. And whoever does not judge by what Allah has revealed - then it is those who are the wrongdoers.
Surah Nisa, ayah 92
Surah Nisa, ayah 92
(Translation: Sahih International)
And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased was from a people at war with you and he was a believer - then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty - then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one or cannot afford to buy one] - then [instead], a fast for two months consecutively, [seeking] acceptance of repentance from Allah. And Allah is ever Knowing and Wise.

Repentance and the Forgiving and Merciful Nature of Allah
Surah Ma'idah, ayah 34
Surah Ma'idah, ayah 34
(Translation: Sahih International)
Except for those who return [repenting] before you apprehend them. And know that Allah is Forgiving and Merciful.

Repentance and Alternative Punishments for Zina
Surah Nisa, ayah 16-17
Surah Nisa, ayah 16-17
(Translation: Sahih International)
Those who commit unlawful sexual intercourse of your women - bring against them four [witnesses] from among you. And if they testify, confine the guilty women to houses until death takes them or Allah ordains for them [another] way.
Surah Nisa, ayah 16-17b
(Translation: Sahih International)
And the two who commit it among you, dishonor them both. But if they repent and correct themselves, leave them alone. Indeed, Allah is ever Accepting of repentance and Merciful.

Appendix 2: The death penalty for zina (adultery)
حَدَّثَنَا أَبُو الْيَمَانِ أَخْبَرَنَا شُعَيْبٌ عَنْ الزُّهْرِيِّ قَالَ أَخْبَرَنِي أَبُو سَلَمَةَ بْنُ عَبْدِ الرَّحْمَنِ الرَّحْمَنِ وَسَعِيدُ بْنُ الْمُسَيَّبِ أَنَّ أَبَا هُرَيْرَةَ قَالَ أَتَى رَجُلٌ مِنْ أَسْلَمَ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَهُوَ فِي الْمَسْجِدِ فَنَادَاهُ فَقَالَ يَا رَسُولَ اللَّهِ إِنَّ الْأَخِرَ قَدْ زَنَى يَعْنِي نَفْسَهُ فَأَعْرَضَ عَنْهُ فَتَنَحَّى لِشِقِّ وَجْهِهِ الَّذِي أَعْرَضَ قِبَلَهُ فَقَالَ يَا رَسُولَ اللَّهِ إِنَّ الْأَخِرَ قَدْ زَنَى فَأَعْرَضَ عَنْهُ فَتَنَحَّى لِشِقِّ وَجْهِهِ الَّذِي أَعْرَضَ قِبَلَهُ فَقَالَ لَهُ ذَلِكَ فَأَعْرَضَ عَنْهُ فَتَنَحَّى لَهُ الرَّابِعَةَ فَلَمَّا شَهِدَ عَلَى نَفْسِهِ أَرْبَعَ شَهَادَاتٍ دَعَاهُ فَقَالَ هَلْ بِكَ جُنُونٌ قَالَ لَا فَقَالَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ اذْهَبُوا بِهِ فَارْجُمُوهُ وَكَانَ قَدْ أُحْصِنَ وَعَنْ الزُّهْرِيِّ قَالَ أَخْبَرَنِي مَنْ سَمِعَ جَابِرَ بْنَ عَبْدِ اللَّهِ الْأَنْصَارِيَّ قَالَ كُنْتُ فِيمَنْ رَجَمَهُ فَرَجَمْنَاهُ بِالْمُصَلَّى بِالْمَدِينَةِ فَلَمَّا أَذْلَقَتْهُ الْحِجَارَةُ جَمَزَ حَتَّى أَدْرَكْنَاهُبِالْحَرَّةِ فَرَجَمْنَاهُ حَتَّى مَاتَ
Narrated by Abu Hurayra (Allah be pleased with him):
A man from amongst the people came to the Messenger of Allah (Allah bless him & give him peace) while he (the Messenger of Allah) was sitting in the Masjid, and addressed him, saying: O Messenger of Allah! I have committed illegal sexual intercourse. The Messenger of Allah (Allah bless him & give him peace) turned his face away from him. The man came to that side to which the Messenger of Allah (Allah bless him & give him peace) had turned his face, and said: O Messenger of Allah! I have committed illegal intercourse. The Messenger of Allah (Allah bless him & give him peace) turned his face to the other side, and the man came to that side. When he confessed four times, the Messenger of Allah (Allah bless him & give him peace) called him and said: Are you insane? He said: No, O Messenger of Allah! The Messenger of Allah (Allah bless him & give him peace) said: Are you married? He said: Yes, O Messenger of Allah! The Messenger of Allah (Allah bless him & give him peace) said (to the people): Take him away and stone him to death.
(Sahih al-Bukhari, Volume 8, Book 82, Hadith 814)
The above incident shows the importance of trying to avert a legal punishment as much as possible. The man came and confessed to the prophet that he had committed unlawful sexual intercourse, yet the prophet ignored him, in order that he may change his mind.
Narrated by Ibn 'Abbas (Allah be pleased with him):
When Ma'iz bin Malik came to the Prophet (in order to confess), the Prophet said to him, "Probably you have only kissed (the lady), or touched, or looked at her?" He said, "No, O Allah's Apostle!" The Prophet said, using no euphemism, "Did you have sexual intercourse with her?" The narrator added: At that, (i.e. after his confession) the Prophet ordered that he be stoned (to death).
(Sahih al-Bukhari, Volume 8, Book 82, Hadith 806, 810, 812-14)
(Sahih Muslim, Book 17, Hadith 4202)
(Abu Dawud, Book 40, Hadith 76)
(Miskhat ul masabih, Volume 2, Hadith 3403)