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Statutory Sentencing Reform in Israel: Exploring the Sentencing Law of 2012

Published online by Cambridge University Press:  23 September 2013

Julian V Roberts  and
Oren Gazal-Ayal
Julian V Roberts
Affiliation:
Respectively, Faculty of Law, University of Oxford (United Kingdom), [email protected]; and Faculty of Law, University of Haifa (Israel), [email protected]. The authors thank Andrew Ashworth and the journal's reviewers for comments on an earlier draft, Gabrielle Watson for editorial assistance, and Efrat Hakak for permission to use her draft translation of the Sentencing Act.
Oren Gazal-Ayal
Affiliation:
Respectively, Faculty of Law, University of Oxford (United Kingdom), [email protected]; and Faculty of Law, University of Haifa (Israel), [email protected]. The authors thank Andrew Ashworth and the journal's reviewers for comments on an earlier draft, Gabrielle Watson for editorial assistance, and Efrat Hakak for permission to use her draft translation of the Sentencing Act.
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Abstract

In 2012 the Knesset approved a new sentencing law. Israel thus became the latest jurisdiction to introduce statutory directions for courts to follow in sentencing. The approach of the United States to structuring judicial discretion often entails the use of a sentencing grid with presumptive sentencing ranges. In contrast, the Sentencing Act of Israel reflects a less prescriptive method: it provides guidance by words rather than numbers. Retributivism is clearly identified as the penal philosophy underpinning the new law, which takes a novel approach to promoting more proportionate sentencing. Courts are directed to construct an individualised proportionate sentencing range appropriate to the case in hand. Once this is established, the court then follows additional directions regarding factors and principles related to sentencing. Although other jurisdictions have placed the purposes and principles of sentencing on a statutory footing, this is the first such legislative declaration in Israel. The statute also contains a methodology to implement a proportional approach to sentencing as well as detailed guidance on sentencing factors. This article describes and explores the new Sentencing Act, making limited comparisons to sentencing reforms in other jurisdictions – principally England and Wales, New Zealand and the United States. In concluding, we speculate on the likely consequences of the law: will it achieve the goals of promoting more consistent and principled sentencing?

Keywords

sentencingsentencing reformjudicial decision-making
Type
Articles
Information
Israel Law Review , Volume 46 , Issue 3 , November 2013 , pp. 455 - 479
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2013 

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References

1 For a collection of essays exploring recent developments in sentencing reform, See Gazal-Ayal, Oren (ed), ‘A Global Perspective on Sentencing Reforms’ (2013) 76 Law and Contemporary Problems 1Google Scholar.

2 Minnesota is the archetypal US jurisdiction. Guidelines have been in place for almost 40 years now in that state: see Frase, Richard S, ‘Sentencing Guidelines in Minnesota, 1978–2003’ in Tonry, Michael (ed), Crime and Justice: A Review of Research, Vol 32 (University of Chicago Press 2005) 131Google Scholar.

3 See von Hirsch, Andrew and Jareborg, Nils, ‘The Swedish Sentencing Law’ in Ashworth, Andrew, von Hirsch, Andrew and Roberts, Julian V (eds), Principled Sentencing: Readings on Theory and Policy (3rd edn, Hart 2009) 258Google Scholar.

4 Although fully developed, the New Zealand guidelines have yet to be proclaimed as law: see Young, Warren and Browning, Claire, ‘New Zealand's Sentencing Council’ (2008) 4 Criminal Law Review 287–98Google Scholar.

5 The English regime also includes a number of generic guidelines which are applicable across different categories of offence – for example, one such guideline relates to sentencing in cases of multiple convictions. For further information, see Roberts, Julian V and Rafferty, Anne, ‘Sentencing Guidelines in England and Wales: Exploring the New Format’ (2011) 9 Criminal Law Review 681–89Google Scholar; Roberts, Julian V, ‘Structured Sentencing: Exploring Recent Developments in England and Wales’ (2012) 14(3) Punishment and Society: The International Journal of Penology 267–88CrossRefGoogle Scholar and, more generally, Ashworth, Andrew and Roberts, Julian V (eds), Sentencing Guidelines: Exploring the English Model (Oxford University Press 2013)CrossRefGoogle Scholar.

6 See, eg, Tonry, Michael and Frase, Richard, Sentencing and Sanctions in Western Countries (Oxford University Press 2001)Google Scholar; Clarkson, Christopher M V and Morgan, Rodney (eds), The Politics of Sentencing Reform (Clarendon Press 1995)Google Scholar.

7 Penal Law (Amendment No 113), 2012, 2337 LSI 170.

8 ‘Report of the Committee for the Examination of Means to Structure Judicial Discretion in Sentencing’, Jerusalem, October 1997 (Goldberg Committee Report). For a thoughtful analysis of the report, see Ohana, Daniel, ‘Sentencing Reform in Israel: The Goldberg Committee Report’ (1998) 32 Israel Law Review 591CrossRefGoogle Scholar.

9 For discussion of legislative proposals prior to the Sentencing Act, see Miriam Gur-Arye and others, ‘Position Paper on the Proposal for Penal Law (Amendment 92 – Structuring Judicial Discretion in Sentencing), 5756-2006 Working Paper No 14, Jerusalem Criminal Justice Study Group, Faculty of Law, Hebrew University of Jerusalem, 2006.

10 See Kannai, Ruth, ‘Sentencing in Israel’ (2010) 22 Federal Sentencing Reporter 223–32CrossRefGoogle Scholar; Gazal-Ayal, Oren and Kannai, Ruth, ‘Determination of Starting Sentences in Israel – System and Application’ (2010) 22 Federal Sentencing Reporter 232–42CrossRefGoogle Scholar.

11 Empirical research in Israel has long demonstrated the influence of proportionality on sentencing practices: see, eg, Shoham, Shlomo, ‘Sentencing Policy of Criminal Courts in Israel’ (1959) 50 Journal of Criminal Law and Criminology 327–37CrossRefGoogle Scholar.

12 For example, s 718 of the Canadian Criminal Code designates proportionality as ‘the fundamental purpose of sentencing’, thus elevating this principle above others, such as restraint with respect to the use of custody as a sanction: see Roberts, Julian V and von Hirsch, Andrew, ‘Conditional Sentences of Imprisonment and the Fundamental Principle of Proportionality in Sentencing’ (1998) 10 Criminal Reports 222–31Google Scholar. Similarly, s 8(a) of the New Zealand Sentencing Act 2002 affirms the importance of proportionality in sentencing.

13 US Sentencing Commission, ‘2011Federal Sentencing Guidelines Manual’, 1 November 2011, http://www.ussc.gov/Guidelines/2011_Guidelines/Manual_HTML/index.cfm.

14 All the English guidelines can be found at http://sentencingcouncil.judiciary.gov.uk/guidelines/guidelines-to-download.htm.

15 von Hirsch, Andrew, Censure and Sanctions (Clarendon Press 1993)Google Scholar.

16 As noted, under the English guidelines each offence carries a proportionate sentence range which is narrower than the total statutory range for the offence: for example, for assault occasioning actual bodily harm (Offences against the Person Act 1861, s 47), the statutory maximum is five years' imprisonment while the guideline sentence range runs from a fine to three years in prison. A court may sentence anywhere within this range and remain compliant with the guideline: see, eg, the definitive guideline for the assault offences, http://sentencingcouncil.judiciary.gov.uk.

17 We discuss the grounds for departing from the PSR later in this article.

18 Roberts and Rafferty (n 5).

19 Young and Browning (n 4).

20 The one offence-related factor which reflects the crime rather than the offender's level of culpability for the crime is factor (4), which relates to the harm that was caused as a result of the commission of the offence.

21 An offence motivated by, or demonstrating, hostility towards the victim based on his or her sexual orientation (or presumed orientation), disability (or presumed disability), or the victim's age, sex, gender identity (or presumed gender identity) are all aggravating circumstances found at Step One of the offence-specific guidelines.

22 According to s 125(1)(b) of the Coroners and Justice Act 2009 (UK), courts must follow any relevant sentencing guideline unless ‘the court is satisfied that it would be contrary to the interests of justice to do so’: see discussion in Roberts, Julian V, ‘Sentencing Guidelines and Judicial Discretion: Evolution of the Duty of Courts to Comply in England and Wales’ (2011) 51 British Journal of Criminology 997–1013CrossRefGoogle Scholar. As noted, US jurisdictions use a more stringent test for departure, namely that the court should find ‘substantial and compelling’ reasons to impose a sentence outside the guidelines range.

23 Statistics from Minnesota reveal that in 2009, 25% of all felony offenders received a sentence different from that prescribed by the guidelines, while a further 14% of all custodial sentences were outside the limits of the range of sentence lengths in the guidelines: Minnesota Sentencing Guidelines Commission, MSGC Report to the Legislature, January 2010, 26, http://www.msgc.state.mn.us/data_reports/jan_leg_report/leg_report_jan2010.pdf. The total departure rate for 2009 was therefore 39%. In England and Wales the limited departure data issued to date reveals that only approximately 2–3% of sentences fall outside the guideline ranges. Courts in England and Wales are not restricted to the sentence range associated with any specific category of seriousness, but are allowed to sentence within the much wider total guideline range for the offence: see Ashworth and Roberts (n 5); Sentencing Council, ‘Crown Court Sentencing Survey: Annual 2012 Results’, http://sentencingcouncil.judiciary.gov.uk/facts/crown-survey-results-2012.htm.

24 The law does not specify whether the seriousness of the offending should determine whether this reason for departing from the PSR is justified. This seems to be an oversight: courts should be prevented from departing from the PSR unless there is a probable risk to society of serious harm – otherwise departures could be imposed for highly recidivist offenders convicted of minor property offences.

25 R v Blackshaw and Others [2011] EWCA Crim 2312.

26 See von Hirsch, Andrew and others, Criminal Deterrence and Sentence Severity (Hart 1999)Google Scholar; Webster, Cheryl and Doob, Anthony N, ‘Searching for Sasquatch: Deterrence of Crime through Sentence Severity’ in Petersilia, Joan and Reitz, Kevin R (eds), The Oxford Handbook of Sentencing and Corrections (Oxford University Press 2011) 173–91Google Scholar; Nagin, Daniel, ‘Deterrence in the Twenty-First Century’ in Tonry, Michael (ed), Crime and Justice: A Review of Research, Vol 39 (University of Chicago Press 2013)Google Scholar.

27 For example, CrimC (Magistrate Court, Tel Aviv) 57968-01-13 The State of Israel v Oyes 2013, 6: ‘The sentencing ranges should be wide enough to allow a variety of defendants with different characteristics and different personal circumstances to find a place under its roof.’

28 See CrimC (Magistrate Court, Haifa) 23887-02-13 The State of Israel v Gidan 2013.

29 For such an exception in England and Wales, see Coroners and Justice Act 2009, s 125.

30 For example, the Canadian sentencing statute contains a range of aggravating factors, but none relating to mitigation. Statutory sentencing factors in other jurisdictions are also more likely to be aggravating than mitigating, possibly because there is greater consensus around the circumstances which make an offence worse, or an offender more culpable. There is generally a wider range of aggravating factors, reflecting the reality that there are many ways of committing a crime with greater harm but fewer ways of mitigating this harm: for discussion, see Roberts, Julian V, ‘Aggravating and Mitigating Factors at Sentencing: Towards Greater Consistency of Application’ [2008] Criminal Law Review 264–76Google Scholar.

31 The scant empirical data seems to indicate that courts, in fact, tend to impose sentences in the lower part of the PSR: see Oren Gazal-Ayal, ‘Disproportional Sentencing Ranges – on the Proportionality Principle in Setting Sentencing Ranges’ (forthcoming) 6 Mishpatim Al Atar (The Hebrew University Law Journal – Online Edition).

32 For example, in Minnesota, committing the offence while on probation, parole or while serving a sentence results in the assignment of an additional custody status point, which justifies a harsher sentence: see Minnesota Sentencing Guidelines Commission, Minnesota Sentencing Guidelines and Commentary, August 2012, 22, http://www.msgc.state.mn.us/guidelines/2012%20MN%20Sentencing%20Guidelines%20and%20Commentary.pdf. Similarly, under the English guidelines, committing an offence while on licence is an aggravating factor to be considered by the court at Step Two of the guidelines methodology.

33 Under the English guidelines intoxication is an aggravating factor, but it may also mitigate sentence – as in the case of a defendant who is unused to drinking and commits an out-of-character offence as a result of a rare episode of drunkenness: see Padfield, Nicola, ‘Intoxication as a Sentencing Factor: Mitigation or Aggravation?’ in Roberts, Julian V (ed), Mitigation and Aggravation at Sentencing (Cambridge University Press 2011) 81Google Scholar.

34 For example, all these circumstances are listed in the definitive guideline for assault issued by the Sentencing Council of England and Wales, Assault: Definitive Guideline, 2011, http://sentencingcouncil.judiciary.gov.uk/docs/Assault_definitive_guideline_-_Crown_Court.pdf.

35 For example, the Swedish Criminal Code (1962), ch 29, para 5, notes a number of factors which should influence sentencing and which may now be found in the sentencing law of Israel. One of these is whether the offender himself suffered serious bodily harm as a result of his own criminal behaviour.

36 Ashworth, Andrew, Sentencing and Criminal Justice (5th edn, Cambridge University Press 2010) 156CrossRefGoogle Scholar.

37 See, eg, Jessica Jacobson and Mike Hough, ‘Personal Mitigation: An Empirical Analysis in England and Wales’, in Roberts (n 33) 146.

38 ibid 152. These authors found that personal mitigation was a factor in approximately half the cases included in their study.

39 Several prominent ex-politicians in Israel – including a former President – have recently been convicted of serious offences. Should public service at the highest levels be deemed a singular ‘contribution to society’?

40 See Tamburrini, Claudio and Ryberg, Jesper (eds), Recidivist Punishments: The Philosopher's View (Lexington Books 2012)Google Scholar; Roberts, Julian V and von Hirsch, Andrew (eds), Previous Convictions at Sentencing: Theoretical and Applied Perspectives, Studies in Penal Theory and Penal Ethics (Hart 2010)Google Scholar.

41 For example, J Angelo Corlett, ‘Retributivism and Recidivism’ in Tamburrini and Ryberg, ibid; Fletcher, George P, Rethinking Criminal Law (Little, Brown and Company 1978) 339Google Scholar.

42 Julian V Roberts, ‘Explaining the Enduring Appeal of the Recidivist Sentencing Premium: The Role of Blameworthiness’ in Ashworth, von Hirsch and Roberts (n 3).

43 See Youngjae Lee, ‘Repeat Offenders and the Question of Desert’ in Roberts and von Hirsch (n 40); Mahon, Thomas, ‘Justifying the Use of Previous Convictions as an Aggravating Factor at Sentencing’ [2012] Cork Online Law Review 85–97Google Scholar.

44 See Andrew von Hirsch, ‘Proportionality and the Progressive Loss of Mitigation: Some Further Reflections’ in Roberts and von Hirsch (n 40). For critiques of this perspective, see Jesper Ryberg, ‘Recidivism, Retributivism, and the Lapse Theory of Previous Convictions’ in Roberts and von Hirsch (n 40).

45 Roberts, Julian V, Punishing Persistent Offenders: Exploring Community and Offender Perspectives (Oxford University Press 2008)CrossRefGoogle Scholar.

46 It is consistent with the English scheme whereby previous convictions are considered only at Step Two of the guidelines methodology, where they have less influence than the primary ‘Step One’ factors. Step One factors determine which of three sentence ranges is appropriate for the case under consideration; Step Two factors influence the sentence only when the range has been determined and this accordingly limits their influence on the level of punishment.

47 Previous convictions may have another effect on the sentence as they may be invoked to justify modest upward departures from the PSR for the protection of society (see the earlier sections of this article on departing from ranges).

48 For example, the Minnesota guidelines incorporate a number of dimensions of a criminal record, including the recency of prior offences, their seriousness and their relation to the current offence: see Minnesota Sentencing Guidelines Commentary (n 32); Roberts, Julian V, ‘Paying for the Past: The Role of Criminal Record in the Sentencing Process’ in Tonry, Michael (ed), Crime and Justice: A Review of Research, Vol 22 (University of Chicago Press 1997)Google Scholar.

49 The provision directs courts to consider the nature of the offence to which the previous conviction relates and its relevance to the current offence, as well as the time that has elapsed between the previous and current convictions: see von Hirsch, Andrew and Roberts, Julian V, ‘Legislating Sentencing Principles: The Provisions of the Criminal Justice Act 2003 relating to Sentencing Purposes and the Role of Previous Convictions’ [2004] Criminal Law Review 639–52Google Scholar.

50 For example, in England and Wales, sentencing authorities follow a guideline which mandates a one-third sentence reduction for offenders who plead guilty at the first reasonable opportunity: see Sentencing Guidelines Council, Reduction in Sentence for a Guilty Plea (Revised Definitive Guideline 2007), http://sentencingcouncil.judiciary.gov.uk. For empirical trends in sentence reduction for a guilty plea, see Julian V Roberts, ‘Sentencing Patterns in England and Wales: Findings from the Crown Court Sentencing Survey’ in Ashworth and Roberts (n 5).

51 See CrimA 1958/98 X v The State of Israel 57(1) PD 577 (2012).

52 See CrimC (District Court, Beersheba) 5093-09-10 The State of Israel v Giami 2013.

53 See Oren Gazal-Ayal, Keren Weinshall-Margel and Inbal Galon, ‘Conviction and Acquittal Rates in Israel’, University of Haifa: Israeli Courts Research Division Publications, May 2012, http://elyon1.court.gov.il/heb/Research%20Division/Research%20-%20Eng.htm.

54 CrimA 2825/11 X v The State of Israel (unreported 2012).

55 See Eisenberg, Theodore, Fisher, Talia and Rosen-Zvi, Issi, ‘Israel's Supreme Court Appellate Jurisdiction: An Empirical Study’ (2011) 96 Cornell Law Review 693–725Google Scholar.

56 For example, CrimA 14/49 Bishu-Bipton v The Attorney General 2 PD 489, 491.

57 See discussion in Wasik, Martin, ‘Concurrent and Consecutive Sentencing Revisited’ in Zedner, L. and Roberts, Julian V (eds), Principles and Values in Criminal Law and Criminal Justice: Festchrift Essays in Honour of Andrew Ashworth (Oxford University Press 2012)Google Scholar.

58 Other guideline schemes provide limited guidance for courts confronted with the complex task of sentencing offenders convicted of multiple counts; see the English Guideline: Sentencing Council of England and Wales, Overarching Guidelines Professional Consultation: Allocation, Offences Taken Into Consideration and Totality, 2011, http://sentencingcouncil.judiciary.gov.uk/docs/Consultation_-_Allocation_TICs_and_Totality_web.pdf.

59 For England and Wales, see Archbold, Criminal Pleading Evidence and Practice (Sweet and Maxwell 2011)Google Scholar; see also R v Broderick (1994) 15 Cr App R (S) 476 (CA).

60 See The State of Israel v Oyes (n 27).

61 See The State of Israel v Gidan (n 28).

62 See Kannai (n 10) 229.

63 See the Goldberg Committee Report (n 8) 10.

64 See Gazal-Ayal (n 31).

65 This is an unofficial translation by the authors of this article based on an earlier version by Efrat Hakak, to whom the authors are grateful for permission to use this draft.