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Plea-Bargaining in Israel — The Proper Functions of the Prosecution and the Court and the Role of the Victim*

Published online by Cambridge University Press:  04 July 2014

Eliahu Harnon
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Extract

Anyone who has studied the case law of Israel in the 1990s and the recent Bill on the issue of plea-bargaining, will have found it difficult not to have detected signs of the following phenomenon, that has started to take root: the growing readiness to permit the prosecution to dictate to the court the exact sentence. Does this not deviate from the accepted and appropriate division of roles between the court and the prosecution? It would also appear, that at present, there are not many who support the idea that the victim of the crime should be informed of the pleabargain that is being negotiated and that his reaction to it should be heard before the court decides whether or not to adopt it. Is this the appropriate level of consideration that should be paid to the victim, according to Israeli law, particularly in our age of emphasizing the constitutional nature of human rights?

Type
Research Article
Information
Israel Law Review , Volume 31 , Issue 1-3 , Winter-Summer 1997 , pp. 245 - 285
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1997

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Footnotes

**

Sylvan Cohen Professor of Criminal Procedure and Evidence, Faculty of Law, The Hebrew University of Jerusalem.

References

1 The Criminal Procedure Bill (Amendment No. 19) (Plea Arrangements) 1995, H.H., No. 2374 (27.2.1995) 360. The full text of this Bill is appended to this article. See infra p. 283.

2 This is the opinion of Supreme Court Justice Mazza. See, for example, the case of Markowitz (1993) 47(ii) P.D. 45, at 56 Google Scholar. For a dissenting view, see the opinion of Supreme Court Cheshin, Justice in Yair Levi (1994) 48(v) P.D. 158, at 173 Google Scholar.

3 The opinion of Supreme Court Landau, Justice in Bahmoutzki (1972) 26(i) P.D. 543, at 558–559 Google Scholar.

4 The opinion of Cheshin, Justice in Nakan (1995) 49(v) P.D. 397, at 405 Google Scholar.

5 Bahmoutzki, supra n. 3, at 555 per Supreme Court Justice Kister.

6 Supra n. 1.

7 Supra n. 3.

8 Arbiv (1986) 40(ii) P.D. 393, at 399 Google Scholar.

9 Criminal Procedure Law (Consolidated Version) 5742-1982, sec. 153(a), 36 L.S.I. 35, at 63.

10 Bahmoutzki, supra n. 3, at 550-551.

11 Ploni (1987) 41(ii) P.D. 572, at 577 Google Scholar.

12 Ibid., at 579-580.

13 Supra n. 8.

14 Harnon, E. and Mann, K., Plea Bargaining in Israel — Theory and Practice in Comparative Perspective. The Harry Sacher Institute for Legislative Research and Comparative Law (Jerusalem, 1981, in Hebrew)Google Scholar.

15 Ibid., Chapter 8, and in particular at 126 and 135-137.

16 Chaldi (1984) 38(i) P.D. 836, at 837 Google Scholar.

17 Ploni (1992) 46(iii) P.D. 525, at 527 Google Scholar.

18 Ibid., at 527-528.

19 Section 155f(b) which will be added to the Criminal Procedure Law under Amendment 19, see n. 1 supra.

20 Assis (1991) 45(i) P.D. 661 Google Scholar.

21 Ibid., at 664.

22 Ibid., at 665.

23 See ibid., at 668-669.

24 See Ben-Attiya (1979) 33(iii) P.D. 276, at 279–280 Google Scholar.

25 Maya (1984) 38(iii) P.D. 162, at 165 Google Scholar.

26 In Keshet (1986) 40(iii) P.D. 472 Google Scholar.

27 Arza (1991) (unpublished).

28 Ibid., per President of the Supreme Court Shamgar.

29 Supra n. 2.

30 Supra n. 20.

31 Maya, supra n. 25.

32 (1980) (unpublished).

33 Supra n. 2.

34 Ibid., at 172.

35 Supra n. 1.

36 This section is mainly based on the following sources: Ashworth, A., “Victim Impact Statements and Sentencing”, (1993) Crim. L.R. 498 Google Scholar; Erez, E., “Victim Participation in Sentencing and the Debate Goes On …”, (1994) 3 Int'l R. of Victimology 17 CrossRefGoogle Scholar; Goldstein, A.S., The Passive Judiciary — Prosecutorial Discretion and the Guilty Plea (1981) 70–73 Google Scholar; Goldstein, A.S., “The Victim and Prosecutorial Discretion: The Federal Victim and Witness Prosecution Act of 1982”, (1984) 47 L. and Contemp. Problems 225 CrossRefGoogle Scholar; Sebba, L., Third Parties: Victims and the Criminal Justice System (1996)Google Scholar; Sebba, L., “Sentencing and the Victim — The Aftermath of Payne”, (1994) 3 Int'l R. of Victimology 141 CrossRefGoogle Scholar; Welling, S.W., “Victim Participation in Plea Bargains”, (1987) 65 Wash. L.Q. 301 Google Scholar.

37 This incident appears at the beginning of an article by Starkweather, David A., “The Retributive Theory of ‘Just Deserts’ and Victim Participation in Plea Bargaining”, (1992) 67 Indiana L.J. 853 Google Scholar.

38 See article by Professor Sebba, supra n. 36, at 142.

39 See, for example, the 1993 article of Professor Ashworth, supra n. 36, at 498, including the sources on which the article is based.

40 See Erez, supra n. 36, at 18; Ashworth, ibid., at 499.

41 See LeFave, and Israel, , Criminal Procedure 1117-1118 (West, 2nd ed., 1992)Google Scholar; Ashworth, supra n. 36; Sebba in his book, supra n. 36, at 15-16, 195-196.

42 For an analysis of the different methods see Sebba, ibid., at 195-196; Ashworth, ibid., at 500-501.

43 See Ashworth, ibid., at 504-505; Sebba, ibid., at 16.

44 See Ashworth, ibid., at 501.

45 (1995) 49(iv) P.D. 589.

46 Ibid., at 621.

47 Ibid., at 651-652.

48 Ganor and others v. Attorney-General and others (1990) 44(ii) P.D. 485, at 510, per Justice Barak.

49 See Criminal Procedure Law (Consolidated Version) 5742-1982, supra n. 9, at sec. 187(b)-(g).

50 See Criminal Procedure Law, sec. 191a, particularly subsecs. (a)-(c).

51 It should be noted that in the State Prosecutor's Guidelines, the victim is considered; the condition of the victim's health, both physical and mental and the harm caused are central considerations that should be taken into account before agreeing on a plea-bargain, particularly with respect to violent, sexual and driving offences. For additional details, see guidelines: 8.1, 8.2 and 9.1. These are intended as guidance to prosecutors how to exercise their discretion. However, they are unable to serve as a replacement for primary legislation. The reason for this is that they are not rules that stem from explicit statutory provisions and they are also not contained in the Public Records. Therefore, these guidelines, which are issued by an administrative body, do not impose any normative obligations, as would statutes or regulations but instead, are a set of flexible rules that may be deviated from in appropriate circumstances. See State of Israel v. Salon Tokyo Ltd. (1992) 46(iv) P.D. 226, at 257; Zamir, I., Administrative Power, Volume 2, Chapter 31 (1996)Google Scholar; Bracha, B., Administrative Law, Volume 2, (1996) 222–223 Google Scholar; see also Ephrati v. Ostfald (1992) 46(iii) P.D. 501, at 512-515. In the article, as will appear later, the appeal is to recognise the rights of the victim in the plea-bargain; for instance, by imposing an obligation on the prosecution to consider the victim and the family, including giving the victim the opportunity to express his opinion to the prosecutor or to the court on the plea-bargain agreement that is being negotiated. It is doubtful whether the State Prosecutor's Guidelines contain an appropriate answer to these wishes. In any event, since the rights of the victim are likely to conflict with the rights of the accused, and the rights of the accused are set out in primary legislation, it is desirable that the rights of the victim in the criminal process, are also set out in primary legislation.

52 See above text to n. 37.

53 See a letter to the editor of Ha'aretz, 6 April 1996, by Rachel Dotan on behalf of the organisation Yated (Yaldei Tismonet Down, Children with Down's Syndrome). On the 23rd February 1996, a letter was published in Ha'aretz from the Women's Lobby of Israel, under the heading: “Rape is Not a Matter for Plea-Bargaining”. The letter stated:

Last week the Supreme Court increased the sentence of Masoud Chouri, accepting the appeal of the State on the lenient sentence imposed by the Haifa District Court. Masoud Chouri, a previous Chairman of the Chevra Kaddisha in Givat Ada, was accused and convicted of rape and sexual abuse of a retarded woman over the course of five years. The steadfast stand of the family of the complainant, their struggle against the pressures of the State Prosecutor to negotiate a plea-bargain and their support of the State appeal against the leniency of the sentence, is deserving of great admiration. I hope that they will stand as an example to all those who fall victim to defendants of this kind and will encourage families to support the victim in spite of the great difficulties and not to agree under any circumstances to a pleabargain. It should be remembered that the role of the prosecution is to fight to the best of its ability to convict defendants and to obtain the appropriate sentence. The prosecution should desist from trading over the severity of the sentence, something which occasionally leads to a ridiculously light sentence for extremely serious offences …

And what would happen if the family of the complainant did not know how to engage in negotiations with the accused and his attorney with respect to the drafting of the plea-bargain, and the agreement was signed and authorised by the court?

54 Supra n. 20.

55 Professor Goldstein in his 1981 book, supra n. 36, at 70.

56 For an analysis of the different methods, see the article of Welling, supra n. 36, at 345-353, 355-356.

57 Supra n. 1.

58 For additional explanations supporting this method, see Welling, supra n. 36, at 346-348.

59 See supra nn. 49-50.

60 Compare Criminal Procedure Law, sec. 191a.

61 See, for example, Bahmoutzki, supra n. 3, at 549-550, per Justice Haim Cohn.

62 See Ashworth, , The Criminal Process (Oxford, 1994) 269 Google Scholar.

63 See particularly, Bahmoutzki, supra n. 3, at 558-559, per Justice Landau.

64 See, for example, Ashworth, supra n. 62, at 268-269.

65 From the Karen incident, supra n. 37.

66 See, for example, Ferguson, and Roberts, , “Plea Bargaining: Directions for Canadian Reform”, (1974) 52 Can. B. R. 497, at 547–548, 550 Google Scholar.

67 See Cohen, Stanley A. and Doob, Anthony N., “Public Attitudes to Plea Bargaining”, (1989–1990) 32 Crim. L.Q. 85, at 93–100 Google Scholar.

68 See Baldwin, and McConville, , Negotiated Justice — Pressures to Plead Guilty (London, 1977)Google Scholar.

69 Harnon and Mann, Plea Bargaining in Israel, supra n. 14, at 142. In this we followed the (United States) provision: Federal Rules of Criminal Procedure, Rule 11(f). See also LeFave and Israel, supra n. 41, 21.4(f).

70 Ali and others (1983) 37(iii) P.D. 169, at 186 Google Scholar.

71 Ben Ze'ev, M., “Eliahu Harnon and Kenneth Mann: Plea Bargaining in Israel”, (1982) 12 Mishpatim 407, at 408 Google Scholar.

72 Markowitz, supra n. 2, at 51, per Justice Netanyahu. See also Bahmoutzki, supra n. 3, at 559, per Justice Landau.

73 See Bahmoutzki, ibid., per Justice Landau.

74 Ibid., per Justice Kister, at 555.

75 Markowitz, supra n. 2, at 56.

76 Supra a. 2, at 173.

77 See, for example, McConville, and Mirsky, , “The Skeleton of Plea Bargaining”, (October 9, 1992) 142 New L.J. 1373 Google Scholar. See also Ashworth, supra n. 62, at 275-284.