Sanctioning policy in israel — an historical overview

Israel Law Review

Volumn 30, Issue 3-4, 1996, Pages 234-275

  Sebba, Leslie ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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EID: 85001174902     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700015107     Document Type: Article

References (172)

1. See on this, A.M. Rabello and L. Sebba, “Continuity and Discontinuity of Law in Times of Social Revolution”, in A.M. Rabello (ed.), Israeli Reports to the XTV International Congress of Comparative Law (Jerusalem: Sacher Institute, 1994), 1.
2. For many years the Criminal Code had, by virtue of sec. 4 of the Ordinance, to be “… interpreted in accordance with the principles of legal interpretation obtaining in England and expressions used in it… presumed … to be used with the meaning attaching to them in English law …”. The general sanctioning provisions, however, were rendered autonomous in this respect on being revised in 1953–54 (see below); while the sanctions for certain offences, and the continuing existence of others, were explicitly reconsidered in 1966 in order to differentiate between the policy of the Knesset and its “Anglo-colonial” predecessor (see the Criminal Code Ordinance Amendment Law (no. 28) of 1966, and the Explanatory Note to the Bill, H.H. no. 674 of 1965, 38, 42. Sec. 4 itself was effectively repealed in 1972 by the Law and Administration Ordinance (Amendment No. 14) Law, which declared that statutory provisions requiring that an enactment be interpreted in accordance with English law to be no longer binding; and the formal reliance upon English law to fill “lacunae” in Israeli law in general was terminated by the Foundations of Law, 1980.
3. The historical development of the criminal code, the implications of sec. 4, and the possibilities for cross-fertilization with other former British colonies which inherited similar codes, were considered in N. Abrams, “Interpreting the Criminal Code Ordinance, 1936 — The Untapped Well,” (1972) 7 Is. L.R. 25
4. Y. Shachar, “The Sources of the Criminal Code Ordinance, 1936,” (1979) 7 Iyunei Mishpat 75.
5. This, too, has changed recently with the adoption of “primaries” by the political parties. The need for individual popularity has resulted in a dramatic rise in the legislative activities of Knesset members, in particular the submission of Private Members' bills — many of which have, in recent years, been successfully pursued. See U. Lin, Report on the Work of the Constitution, Law and Justice Committee in the Twelfth Knesset (Jerusalem, 1992)
6. L. Sebba, “Professor Tedeschi and the ‘Jurisprudence of Legislation’—A Voice in the Wilderness”, in I. Englard et al. (eds.), In Memory of Gad Tedeschi: Essays in Civil Law (Jerusalem: Sacher Institute, 1995), 535, esp. 545–6.
7. See Sebba, In Memory of Gad Tedeschi: Essays in Civil Law.
8. See sec. 42(1). In the case of the death penalty, however, there was a presumption that this was mandatory (In Memory of Gad Tedeschi: Essays in Civil Law.).
9. See Palestine Gazette, 1933, 639, 650. See also H.H. Cohn, “Legislation and Judicial Process in the Field of Criminal Law,” in I. Drapkin et al. (eds.), The Prevention of Crime and Treatment of Offenders in Israel (Jerusalem, 1965) 15, at 17.
10. See secs. 69–71 of the Prisons Ordinance of 1946.
11. The terminology appearing in this article (in relation to Knesset — and pre-Knesset — statutes) derives from the official government translations — the Laws of the State of Israel. The General Amnesty Ordinance appears in 2 L.S.I. 115.
12. See L.S.I., secs. 1 and 2.
13. For an analysis of this law, see L. Sebba, Pardons and Amnesties — Legal and Penological Aspects, Doctoral Dissertation (Jerusalem: Hebrew University, 1975), ch. 4.
14. See H.H., no. 15,1949, p. 159. The opening section purported to be more far-reaching: “There will be no death penalty in the state”.
15. See the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954, 8 L.S.I. 63.
16. See T. Mathiesen, The Politics of Abolition (London, 1974).
17. See J.W. Eaton, Prisons in Israel (Pittsburgh: University of Pittsburgh Press, 1964), 1
18. Z. Hermon, “The Institutional Treatment and After-Care of Adult Offenders and Juvenile Delinquents in Israel,” in I. Drapkin et al. (eds.), The Prevention of Crime and The Treatment of Offenders in Israel, Prisons in Israel, 122, at 124.
19. It may be that the anticipation of a tiny prison population was based not so much upon an ideological opposition to prisons, but rather upon the perception that there would be little crime in the new state (cf. Hermon, The Prevention of Crime and The Treatment of Offenders in Israel, Prisons in Israel.).
20. See the Penal Law Revision (Modes of Punishment) Bill, 1953, H.H. no. 179, 6, at 9. On sec. 4 of the Code see n. 3 above.
21. See S. Rubin et al., The Law of Criminal Corrections (St. Paul, Minn., 2nd ed., 1973)
22. K. Hamai et al. (eds.), Probation around the World (London: Routledge, 1995).
23. For discussions of these sanctions in the context of their development in Israel, see S. Agranat, “First Lecture”, in I. Drapkin (ed.), Penal Reform in Israel (Jerusalem: Institute of Criminology, 1963) 6, at 16
24. L. Sebba, “Penal Policy and Court Practice: The Case of the Suspended Sentence,” in I. Drapkin (ed.), Scripta Hierosolymitana: Studies in Criminology (Jerusalem: Magnes Press, 1970) 133.
25. “For a felony a fine alone will not be imposed” (sec. 9 of the Bill). Judicial interpretation of such formulations appearing elsewhere in Israeli legislation suggests that the courts might have evaded the mandatory intention (see the Explanatory Note on p. 10 of the Bill) by imposing a fine coupled with a minor sanction, such as a recognisance. See L. Sebba, “Minimum Sentences”, (1971) 6 Is. L.R. 227. Moreover it was presumably intended that a suspended sentence could be imposed.
26. See H.H. no. 179, 11.
27. See the minimum penalties introduced for assaults on police officers under the Penal Law Revision (Assault on Police Officers) Law, 1952 (now secs. 273–6 of the Penal Law, 1977). See also the proposal for mandatory imprisonment for felonies under the Penal Law Revision (Modes of Punishment) Bill (see above, n. 24 and accompanying text). Moreover the overriding purpose of the suspended sentence was individual deterrence.
28. For a sympathetic account of these developments, see M. Grunhut, Penal Reform (Montclair, N.Y.: Patterson Smith, 1972).
29. For a critical view, see S. Cohen, Visions of Social Control (Cambridge: Polity Press, 1985).
30. See, e.g., an account of Israel's prison regime by the Scientific Adviser (and former Commissioner) of the prisons, Dr. Zvi Hermon: “… the philosophy underlying prison work aims at discovering in each individual prisoner his positive potentials and developing them as far as this is possible in the setting of a prison toward his rehabilitation. In order to facilitate the translation of this philosophy and its aims into a practical reality, the correctional institutions are based, in an ever-growing degree, on the classification of the prisoners according to their background, antecedents, and personalities.” (Z. Hermon, “The Institutional Treatment and After-Care of Adult Offenders and Juvenile Delinquents in Israel”, Visions of Social Control, at 123–4.
31. A recent paper has traced the dominance of the pathological approach to delinquency to the pre-state era: see M. Ajzenstadt, Social Control and the Welfare State: Discipline and Regulations in Israel, 1930–1970 (Jerusalem, 1996).
32. See D. Rothman, The Discovery of the Asylum (Boston: Little Brown, 1971).
33. According to sec. 19(a) a pre-sentence report was to include: “(1) the past history of the accused; (2) particulars of the family of the accused, with details as complete as possible regarding his parents, spouse, children, brothers and sisters; (3) the economic situation of the accused; (4) the state of health of the accused and of the members of his family; (5) special personal circumstances, if any, which drove him to crime.” The adoption of this provision was influenced by the report submitted to the Ministry of Justice by Edmond Fitzgerald, Chief Probation Officer of King's County, Brooklyn; see E. Fitzgerald, Report on a Six Weeks Study of Correctional Procedures in the State of Israel
34. B. Halevi, “Second Lecture”, in I. Drapkin (ed.), Penal Reform in Israel, Report on a Six Weeks Study of Correctional Procedures in the State of Israel, at 18, 24. The principle that dispositions for juvenile offenders should be based upon pre-sentence investigations had already been recognised in the Juvenile Offenders Ordinance of 1937 and the Probation of Offenders Ordinance of 1944. The principle that an an adult offender should not be placed on probation without such a report was recognised by an amendment to the latter Ordinance in 1953.
35. See Halevi, Penal Reform in Israel, Report on a Six Weeks Study of Correctional Procedures in the State of Israel., at 24.
36. See Penal Law Amendment (Modes of Punishment) (Amendment No. 2) Law, 1961.
37. See the Declaration in the Matter of Sec. 19(b) of 1964. Other limitations (i.e., exemptions from the obligation to receive a pre-sentence report prior to the imposition of imprisonment) applied to certain types of offence, and to offenders serving a prison sentence for another offence. This provision is still in force today. For an account of these developments, see A. Sharon, The System of Probation in Criminal Law (Haifa, 1987) 88–89.
38. This alternative was not specified in the 1954 law, but only under the Probation of Offenders Ordinance. Probation was not regarded as a “mode of punishment” but as a form of treatment, and had therefore been removed from the list of “Punishments” appearing in sec. 37 of the Criminal Code Ordinance, prior to the enactment of the 1954 revision. On this approach see also AG. v. Weigel (1963) 17 P.D. 712
39. the Further Hearing at 17 P.D. 2358.
40. This provision now appears as section 89 of the Penal Law, 1977.
41. The official translation refers to this committee as a Parole Board; see also H. Cohn, the Penal Law. However this terminology is not always used, in view of the absence of parole supervision in the Israeli system.
42. See sec. 38 of the Law (now sec. 50 of the Penal Law, 1977). Moreover, if the board did not include a medical practitioner (but rather an educator), it was obliged to obtain a medical opinion before reaching its decision: see sec. 39(c) of the 1954 Law (now sec. 51(a)).
43. See explanatory note to the Penal Law Revision (Modes of Punishment) Bill, 5714–1953, H.H. no. 179, p. 9.
44. This provision became sec. 18D of the 1954 Law, and remains in force as sec. 56 of the Penal Law of 1977.
45. This provision became sec. 18A of the 1954 Law, and remains in force as sec. 53 of the Penal Law of 1977.
46. See the comment of M. Horovitz, the then Deputy Chief Probation Officer, on the lecture by Justice Halevi, who had been advocating the combined sanction. Horovitz argued that the two sanctions were appropriate for different types of offender. See I. Drapkin (ed.), Penal Reform in Israel, the Penal Law of 1977, at 26. It may be observed that the possibility of a combined sanction was included in the original Bill introducing the suspended sentence in 1953: See sec. 16 of the Penal Law Revision (Modes of Punishment) Bill, 1953.
47. See 17 L.S.I. 96, 98–9.
48. This provision became sec. 17A of the 1954 Law, which subsequently became sec. 82 of the Penal Law of 1977. This, provision was replaced in 1989 (see below).
49. See, generally, Conrad and Schneider, Deviance and Medicalization (St. Louis: Mosby, 1980).
50. The definition of insanity which appeared in the Criminal Code Ordinance of 1936 (sec. 14) was relatively narrow and conservative, reflecting the cognitive criteria laid down in the English McNaughten Rules. (This definition may be contrasted with the broader and more flexible Durham or “product” rule adopted by the U.S. federal court system one year before the reform being considered here: see, e.g., N.N. Kittrie, The Right to be Different (Baltimore: Penguin, 1971) 42–43.
51. The legislation of 1955 did not directly affect this definition — but in the same year the Supreme Court in the Mizan case (Mizan v. A.G. (1957) 11 P.D. 769)
52. adopted a minority opinion of Agranat J. in the Mandelbrot case of 1953 (A.G. v. Mandelbrot (1956) 10 P.D. 281.) which gave judicial recognition to the “irresistible impulse” defence.
53. (See J. Bazak, “Irresistible Impulse, Diminished Responsibility and Psychiatric Evidence in Israeli Law”, in I. Drapkin (ed.), The Prevention of Crime and Treatment of Offenders in Israel, P.D., at 35. This defence, like the Durham rule, is deterministic in spirit.
54. See U. Aviram and D. Shnit, Psychiatric Treatment and Civil Liberties (Tel-Aviv: Zmora, Bitan, Modan, 1981)
55. Yarmilovitch et al. v. Hovav, (1981) 35(iii) P.D. 766
56. A. Kanter and U. Aviram, ‘Israel's Involuntary Outpatient Commitment Law: Lessons from the American Experience”, (1995) 29 Is. L.R. 565, at 568–70.
57. Interestingly, the Explanatory Note to the bill (H.H. no. 230, 1955, pp. 90,94) declared that the new law “would ensure that the mentally ill would not be deprived of their liberty or other basic rights, unless there was a real need, whether for the purpose of their treatment or for the protection of the public, and by way of procedures determined by law”. This favourable view of the new law may be explained not only in terms of the different concepts of rights — and the lack of awareness of civil liberties — held at that time, but also in the light of the situation of legal anomie which prevailed in this area prior to the adoption of the new Law; for the law applicable previously was an Ottoman law which had not been translated into Hebrew or English and the contents of which were generally unknown!
58. See Explanatory Note to the bill, H.H.
59. One of the weaknesses of these provisions was that the imposition of a prison sentence was a pre-condition to a treatment order—which could be either concurrent or consecutive. This raised the question of whether a presumed addict should be sent to prison before being cured of his or her habit — or after, when further exposure to drugs in the prison environment would be assured. A second problem here was the interaction (or failure of interaction) between the special Board established to authorize the release of the offender from the institution — and possibly back to prison depending, if the institutional order was to be concurrent with the prison term, whether the prison term had terminated — and the prison release committee (or Parole Board) which determined the ultimate release date from prison. See L. Sebba and R. Ehrenfeld, Rehabilitation as Punishment (Jerusalem: Sacher Institute, 1988)
60. R. Ehrenfeld and L. Sebba, “Involuntary Treatment of Drug Addicts in Israel”, in W.H. McGlothlin and M.D. Anglin (eds.), The Compulsory Treatment of Opiate Dependence (Binghampton: Haworth Press, 1991).
61. See Sebba and Ehrenfeld (The Compulsory Treatment of Opiate Dependence.).
62. See H.H. 1962, no. 522, p. 246 at 251, and sec. 17A(b) of the 1954 Law as amended. However this section also provided that a psychiatric ward in a prison could be designated a suitable institution for this purpose.
63. See Sebba and Ehrenfeld, H.H.
64. See Kittrie, H.H.
65. See sec. 2(5) and (6) of the Youth (Care and Supervision) Law, 1960,14 L.S.I. 44. The greater emphasis on welfarism in the new law was also reflected in the transfer of the power to act from probation officers to welfare officers (see below), and in the additional powers of intervention granted to such officers, including interim and emergency powers (see secs. 11 and 12 of the Law).
66. Sec. 2(3) of the Law, L.S.I.
67. The question of whether civil or welfare proceedings are less oppressive or otherwise preferable for children as compared with penal or quasi-penal proceedings has of course been a subject of much debate in recent times; see A. Morris and H. Giller, Understanding Juvenile Justice (London: Croom Helm, 1987)
68. L. Sebba, “Juvenile Justice: Mapping the Criteria”, in M.D.A. Freeman and P. Veerman (eds.), The Ideologies of Children's Rights (Dordrecht: Nijhoff, 1992) 237.
69. See L. Sebba, “Youth (Trial, Punishment and Treatment) Bill, 1969,” (1970) 2 Mishpatim 388
70. L. Sebba, “Legalism versus Welfarism in Israel's Juvenile Justice System”, (1981) 16 Is. L.R. 461
71. E. Sharon, Youth in Criminal [Procedure]: Trial, Treatment and Punishment (Haifa, 1990).
72. Thus, for example, the court was (and is) empowered to place an accused minor (i.e., before a finding of guilt) under the temporary supervision of a probation officer (or even send the minor to a home for the purposes of observation) if it is of the opinion that “the interest of the minor so requires” (sec. 20 of the Law; see 25 L.S.I. 128). See also secs. 11, 12, and 22 of the Law.
73. For an analysis of labelling theory and its policy implications, see L.T. Empey, American Delinquency: Its Meaning and Construction (Homewood, III.: Dorsey, 1978), ch. 13.
74. Data on this phenomenon may be found in the annual reports issued by the Probation Service. In recent years more than one half of the cases of delinquency reported to the police are dealt with outside the court, whether by refraining from opening a file, or by closing the file without prosecution. See, e.g., Ministry of Labour and Welfare, Minors Dealt with by the Juvenile Probation Service 1995, (Jerusalem, 1996) pp. ii, xxxii.
75. See H.H. 1978, no. 1334, p. 147.
76. Juvenile delinquency among the ofiental communities is traditionally associated by criminologists with the “cultural conflict” which was experienced during the wave of post-independence immigration, giving rise to the establishment of the Agranat Committee in the 1950s. Ajzenstadt, H.H., shows, however, that “wayward” children from among these communities were already the focus of social control measures during the pre-state period.
77. See H.H.
78. Penal Law (Amendment No. 3), 1978, sec. 2, amending sec. 3 of the 1960 Law. This provision did not appear in the Bill.
79. See the Welfare (Treatment of Retarded Persons) Law, 1969 (23 L.S.I. 144). The nature of the “mode of treatment” to be determined by the evaluation board was left open (see sec. 7), but this expression was defined in sec. 1 of the Law to “include the maintenance of a retarded person in a home or his reporting to a day home”.
80. For an overview of the generally paternalistic approach to this topic under the Israeli legal system see: S.S. Herr, “Human Rights and Mental Disability: Perspectives in Israel”, (1992) 26 Is. L.R. 142.
81. Sec. 19C of the Law; see the Welfare (Treatment of Retarded Persons) (Amendment No. 2) Law, 1975, 29 L.S.I. 93, 94. In the event that the accused has been found to be unfit to stand trial, or not responsible for the act committed, referral to this committee is mandatory.
82. Sec. 19D of the Law; see L.S.I.
83. Cf. the case of Roth v. State of Israel, (1977) 31(ii) P.D. 757, where the court held, in the case of a person suspected of being mentally ill, that an involuntary diagnostic procedure would not be justified where the offence was of a minor character and the ultimate imposition of a prison sentence unlikely.
84. Another legislative bill in the area of juvenile justice with a strongly welfarist orientation, designed to amend the Youth (Trial, Punishment and Modes of Treatment) Law of 1971, was submitted to the Knesset by the government in 1979. This law would, inter alia, have vested wide powers in the authorities to modify the court's disposition, e.g., by transfering a minor from a closed home to prison and vice versa, and to impose a conviction ex post facto. (The original law, which remains in force today, also includes provisions of this nature, but these are narrower in scope.) For an analysis of the provisions of the proposed bill see L.Sebba, “Youth (Trial, Punishment and Modes of Treatment) Bill (Amendment No. 2) 1979”, (1981) 11 Mishpatim 322. Not only did this bill fail to pass its first reading at the first attempt; it has not been adopted to this day, in spite of continuing attempts to revise and reintroduce it.
85. See H.H. 1981, no. 1514, pp. 219–217.
86. An institution of this nature was apparently provided for under a law inherited by Israel from the Ottoman period, but had fallen into desuetude; see S.Z. Feller, “Rehabilitation — A Special Legal’ Institution which is Necessary”, (1968/1969) 1 Mishpatim 497.
87. See P. Elman (ed.), Policy Consultation on the Rehabilitation of Prisoners (Parole and After-Care) (Jerusalem, 1973). As noted above, the release committee established under the Penal Law (Modes of Punishment) Law, 1954, was referred to in the official translation as a parole board, but it has no supervision component on a systematic or normative basis (although such a requirement may on occasion be incorporated in the release conditions specified by the committee).
88. See, e.g., Council of Europe, Alternative Penal Measures to Imprisonment (Strasbourg, 1976)
89. HEUNI Institute, Alternatives to Custodial Sanctions (Helsinki, 1988)
90. in the Israeli context, M. Talgam et al. (eds.), “Alternatives to Imprisonment: Correctional Services”, Iyunim B'Kriminologia no. 3 (Tel-Aviv, 1988).
91. See M. Ancel, Social Defence (London: Routledge and Kegan Paul, 1965), at 118.
92. See the views of S. Kwart (Deputy State Attorney) and B. Halevi (Supreme Court Justice) in Penal Reform in Israel, Social Defence, at 13, 19.
93. See Criminal Code Amendment Bill (no. 29), 1965, H.H. no. 674, pp. 38, 42. However, while the Explanatory Note declared that “the minimum term of imprisonment under the Code will be three months” the intention was merely to raise the maximum penalties for offences which had maxima of one week, one month, etc. Thus judicial discretion to impose shorter terms would have been retained.
94. See S. Cohen, H.H., at 30ff.
95. See Central Bureau of Statistics, Criminal Statistics 1970 (Jerusalem, 1973), Table 50
96. Israel Prison Service, Annual Report 1991. (By this year the prison population had risen to over 10,000.)
97. H.H. no. 179, Annual Report, at 10.
98. Cf. J. Austin and B. Krisberg, “Wider, Stronger and Different Nets: The Dialectics of Criminal Justice Reform”, (1981) 18 J. of Research in Crime and Delinquency 165.
99. See L. Sebba, “Penal Reform and Court Practice: The Case of the Suspended Sentence”, J. of Research in Crime and Delinquency.
100. The English experience was different in this respect: see M. Cavadino and J. Dignan, The Penal System (London: Sage, 1992) 180.
101. See Halevi, The Penal System, at 23.
102. See W. Young, Community Service Orders (London: Heinemann 1979)
103. M. Hovav, “Alternatives to Imprisonment in Israel”, in Y. Tzubery (ed.), The Prevention of Crime and the Treatment of Offenders in Israel (Jerusalem: Ministry of Police, 1990) 98, at 99, 101.
104. See H.H. 1978, no. 1357, p. 284.
105. See, e.g., D. Duffee, Community Corrections. A Community Field Approach (Cincinatti, 1990).
106. See D. Nelken, “Community Involvement in Crime Control”, (1985) 38 Current Legal Problems 239–267, in which three different uses of the term community in this context are considered.
107. See sec. 51B of the Penal Law, 1977, as amended. The role of the prison officer is defined in sec. 5IK. The types of activity available for this purpose are determined by the Director of the Employment Exchange (sec. 51A).
108. See, e.g., Hovav, the Penal Law.
109. The diverse objectives which were attributed to this reform during the course of its adoption (and, since that time, by the courts) are discussed in S.F. Landau, L. Sebba, B. Sagiv, and R. Nirel, Punishment by “Service Work” — An Evaluation Study (Jerusalem: Ministry of Police, 1994) ch. 2.
110. An Evaluation Study.
111. See also R. Nirel, S.F. Landau, L. Sebba and B. Sagiv, “The Effectiveness of Service Work: The Analysis of Recidivism”, J. of Quantitative Criminology (forthcoming).
112. See the Explanatory Note to the bill incorporating the revised provisions (H.H. 1988, no. 1893, p. 249), which cited the recommendations of a governmental committee on drug policy (the “Mann Committee”). This committee was apparently influenced by the findings of the study referred to in n. 57 above.
113. See H.H., H.H., at 249–250.
114. See Penal Law (Amendment no. 49), 1996. (Since the treatment is in the framework of a probation order, the court may make the order while refraining from registering a conviction.) This amendment is complemented by a contemporaneous amendment to the Law for the Prevention of Violence in the Family of 1991 which specifies that a court may require a person who is the object of a (civil) protection order to undertake treatment: see Amendment no. 2 to this law, of 1996.
115. See, generally, Kanter and Aviram, Penal Law.
116. The low profile of criminal justice issues is generally attributed to the dominance of regional and security issues. Ajzenstadt, Penal Law, however, has in a recent paper provided an alternative historical analysis, showing how in the early (and pre-state) years crime and deviance were merely a sub-issue in the general discourse of “nation-building”.
117. See the Dangerous Drugs Ordinance (New Version) Amendment Law, 1989.
118. The maximum penalty for possession or use of small quantities, however, was reduced in 1971 to only three years imprisonment: see the Dangerous Drugs Ordinance (Amendment No. 3) Law, 1971, amending sec. 16 (now in sec. 7 of the New Version of 1973).
119. For most offences for which life imprisonment was laid down in the Criminal Code Ordinance of 1936, the maximum penalty is now 20 years imprisonment (see the Dangerous Drugs Ordinance (Amendment No. 3) Law).
120. See sec. 25 of the Ordinance. Other offences for which minimum penalties are laid down include assaults on police officers, procuring for prostitution, and hit-and-run driving. (As to new proposals for minimum penalties for sex offences and domestic violence, see below.) However, a provision adopted together with the recent revision of the General Part of the penal code specifies that where mandatory penalties are provided, the court may depart from such penalties if there are special mitigating circumstances, to be specified in the sentence. (See sec. 35A of the Penal Law, 1977.)
121. See, e.g., N. Ben-Yehuda, “The Sociology of Moral Panics: Towards a New Synthesis”, (1986) 27 The Sociological Quarterly 495.
122. See the War Against Drugs Authority Law, 1988, the provisions of which relate to prevention and treatment measures rather than penal ones. The Authority itself, however, has (like the Knesset Drugs Committee) generally been identified with a punitive approach.
123. See the Penal Law (Amendment no. 22) 1988. Among the changes brought about by this amendment was an increase in the maximum penalty for rape from 14 to 16 years, and additions to the list of aggravating circumstances for which the maximum penalty is 20 years.
124. See Penal Law (Amendment no. 30), 1990.
125. See sees. 368A-368C of the Penal Law, 1977, as enacted by the Penal Law (Amendment no. 26), 1989. A “vulnerable person” is defined under sec. 368A as “a person who owing to his age, his physical or mental illness or impairment, his defective intelligence, or for any other reason, is unable to take care of his living needs, his health or his welfare.”
126. See the Procedure (Examination of Winesses) (Amendment no. 2) Law, 1995.
127. Recent cases determined by the U.S. Supreme Court seem to indicate a likelihood that victim related evidence may encourage the use of capital punishment: see L. Sebba, “Sentencing and the Victim: The Aftermath of Payne”, (1994) 3 International Review of Victimology 141.
128. However empirical surveys indicate that victim involvement does not necessarily have the effect of rendering sanctions more severe: see A. Walsh, “Placebo Justice: Victim Recommendations and Offender Sentences in Sexual Assault Cases”, in E.A. Fattah (ed.), Towards A Critical Victimology (Basingstoke: St. Martin's Press, 1992) 295
129. E. Erez et al., Victim Impact Statements in South Australia: An Evaluation (Adelaide: South Australia Attorney-General's Department, 1994).
130. See Criminal Procedure Law [Consolidated Version], 1982, sec. 117
131. Evidence Ordinance, 1971, sec. 10A
132. Dangerous Drugs Ordinance [New Version], 1973, secs. 24, 31.
133. See M. Hoffnung, Israel—Security Needs vs. the Rule of Law (Jerusalem: Nevo, 1991) and the sources cited therein.
134. Hoffnung notes that the legislation on the part of the Knesset, with which this article has been primarily concerned, has been rather limited in this area (Dangerous Drugs Ordinance., at 293).
135. See: Hoffnung, Dangerous Drugs Ordinance.
136. B'tselem, The Military Judicial System in the West Bank (Jerusalem, 1989)
137. Violations of Human Rights in the Occupied Territories 1990/1991 (Jerusalem)
138. Human Rights Violations in the Occupied Territories 1992/1993 (Jerusalem).
139. B'tselem estimated that the number of detainees during the course of the Intifada exceeded 100,000: see p. 115 of their 1992/1993 report (Human Rights Violations in the Occupied Territories).
140. See S. Cohen, “Politics and Crime in Israel: Reactions from the Home Front,” (1990) 17 Social Justice 5, at 9–10.
141. See M.M. Feeley and J. Simon, “The New Penology: Notes on the Emerging Strategy of Corrections and its Implications”, (1992) 30 Criminology 449 (see esp. p. 455)
142. A. Bottoms, “The Philosophy and Politics of Sentencing,” in C. Clarkson and R. Morgan (eds.), The Politics of Sentencing Reform (Oxford: Clarendon Press, 1995), at p. 24. In this context Garland points to the policy of the British government of transfering responsibility for crime control to the community or the individual citizen
143. see D. Garland, “The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society,” British Journal of Criminology (forthcoming).
144. See the Prisons Ordinance (Amendment No. 12) Bill, 1990, H.H. no. 1975, p. 116. Indirectly, of course, the need to prevent overcrowding can be related to the provision of optimal conditions for the prisoners — and hence to the rehabilitative aim. It can similarly be related to human rights objectives (see below).
145. See B'Tselem, Violations of Human Rights in the Occupied Territories 1990/1991, H.H, at chs. 8 & 9. On the other hand, many offenders were held in the regular prisons, thereby aggravating the problem of overcrowding, which in turn gave rise to the Administrative Release Law.
146. See the government's response in B'Tselem, House Demolition during Operations against Wanted Persons (1993) 16.
147. See S. Shetreet, “Ransom Money — Penal Sanction in the Hands of the Administration?” (1970) 2 Mishpatim 577.
148. See B. Cohen, “The Practice of Israel in Matters Related to International Law,” (1992) 26 Is. L.R. 559, at 572.
149. The ratification of these conventions, however, has had much less impact on Israel's criminal justice system than the Basic Law: see L.Sebba, “Human Rights and the Penal System: Have the 90s Produced Two Constitutional Revolutions?” (1996) 13 Mehkarei Mishpat 183.
150. See secs. 10 and 28 of the Treatment of Mentally Sick Persons Law, 1991.
151. See, especially, in the present context, Y. Karp, “Criminal Law — Janus of Human Rights: Constitutionalization in the Light of the Basic Law: Human Dignity and Liberty”, (1995) 42 HaPraklit 125–164
152. See also Sebba, HaPraklit and other articles in the same issue.
153. See, eg., E. Gross, “The New Constitutional Rights of the Defendant in Israel”, (1996) 13 Mehkarei Mishpat 155–182.
154. See the Criminal Procedure (Powers of Enforcement — Body Search on Suspect) Law, 1996
155. the Criminal Procedure (Powers of Enforcement — Arrests) Law, 1996.
156. Thus, for example, first offenders sentenced for up to five years will have a presumptive right to early release. The proposals — circulated in draft form by the Ministry of Justice as Penal Law (Early Release of Prisoners and Commutation of Life Imprisonment), 1995 — follow the recommendations of a committee appointed by the Attorney-General and comprising jurists in the public service and criminologists: see Report of the Committee on the Early Release of Prisoners by the the Release Committee (Jerusalem, 1991).
157. See, e.g., M. Joutsen, The Role of The Victim of Crime in European Criminal Justice Systems (Helsinki: HEUNI, 1987). The nebenklage system enables the victim to be represented during the course of the criminal trial.
158. However, in certain cases, private criminal prosecutions may be brought: see secs. 68–73 of the Criminal Procedure Law (Consolidated Version), 1982 (36 L.S.I. 35).
159. Sec. 43 of the Criminal Code Ordinance, 1936; as to the subsequent revision of this provision, see below.
160. See: the Law of Evidence Revision (Protection of Children) Law, 1955 (9 L.S.I. 102). Mandatory reporting was introduced in 1974 by means of an amendment to the Youth (Care and Supervision) Law of 1960. (This provision has now been replaced by sec. 368D of the Penal Law; see following note).
161. See sec. 368D of the Penal Law, 1977 (as amended in 1990). Thus mandatory reporting is no longer confined to abused children, but also applies to the other categories referred to in n. 132 above.
162. See the Law for the Prevention of Violence in the Family, 1991 (cf. n. 119 above).
163. See sec. 77 of the Courts Law (Consolidated Version), 1984 (38 L.S.I. 271)
164. sec. 42A of the Evidence Ordinance [New Version], 1971 (2 L.S.I. [N.V.] 198).
165. See A.L. Miller and L.Sebba, “Crime Victim Compensation: An Israeli Proposal”, (1987) 20 The Comparative and International Law Journal of South Africa 47
166. U. Yanay, “Assistance for Victims of Violent Crime: Issues in Policy and Welfare,” (1994) 14 Hevra VeRevaha, 129–146.
167. See Hevra VeRevaha.
168. see, generally, L. Sebba, Third Parties: Victims and the Criminal Justice System (Columbus: Ohio State, 1996).
169. See, e.g., R.I. Mawby, “Victims' Needs or Victims' Rights: Alternative Approaches to Policy-Making”, in M. Maguire & J. Pointing (eds.), Victims of Crime: A New Deal? (Milton Keynes: Open University, 1988) 127.
170. See E. Harnon, “Plea-Bargaining in Israel: The Proper Functions of the Prosecution and the Court, and the Role of the Victim” (1997) 27 Mishpatim 543
171. L. Sebba, The Role of the Victim in Israel's Criminal Justice System, paper presented to the Anglo-Israel Judicial Exchange, 1996.
172. This refers to the modified form of proportional sentencing which followed the purely classical era, and which allowed for judicial discretion: see Cavadino and Dignan, paper presented to the Anglo-Israel Judicial Exchange, at 46ff.