Disabled and mentally ill people, who were sentenced to community service, are being unjustly sent to jail because their condition makes it impossible for them to serve their sentence in community service.
The law states that the official in charge of community service must make good efforts to find places where a variety of convicts, including disabled, can serve their sentence. Disabled and mentally ill people, however, are being discriminated against compared to physically and mentally fit people convicted of the same crimes.
E., who is disabled from birth and suffers psychiatric disabilities, was convicted more than two years ago of attempted online sexual harassment. A Tel Aviv court sentenced E. to eight months of community service and referred him to the community service official to find a suitable slot. But the official found that E. was not suitable for community service.
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It was stated that the decision was made based on E.’s medical condition after consultation with his family doctor. However, after it was found that the family doctor never determined that E. could not work, the official changed his reason, but not his conclusion. This time he rejected E. for community service based on what was said was his lack of “employment habits.”
E.’s public attorney, Elad Roth, demanded that the case be returned for the third time to the official in charge of community service. This time, the response was that attempts to find placement for E. were made but were unsuccessful.
Last week, Judge Tavor sent E. to prison for six months. Roth plans to appeal to the Tel Aviv District Court and argue that efforts made to find E. placement in community service were insufficient and that some of the official’s statements were untrue.
According to the law, people convicted of crimes carrying up to a nine-month prison sentence may exchange their prison sentence for community service at a hospital, non-governemental organization or other nonprofit facility, after approval by the Israel Prison Service official in charge of community service.
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The Law on Equal Rights for Persons with Disabilities prohibits discrimination due to a person’s disabilities, and the Supreme Court has issued specific rulings on the matter. In 2010, now-retired Justice Elyakim Rubinstein ruled: “It is inconceivable for a person with disabilities to be imprisoned in place of another who is not.” The state comptroller warned in a report published in May 2019 that people with disabilities were being sent to prison under conditions unsuitable for them.
Nevertheless, Haaretz checked and found a number of cases where convicted persons with disabilities were not permitted to serve community service sentences because of their disability.
‘Setting stage for prison’
A., 32, who has cerebral palsy, was convicted of driving without a license and sentenced to prison after no community service work was found for him.
A. has neurological impairment that prevents him from functioning in various ways, due to disabilities such as involuntary movements and a speech impediment. In July 2019 he was convicted based on his own confession of driving without ever having obtained a driver’s license.
Transportation Court Judge Nir Nahshon referred A. to the official in charge of community service to determine whether he could serve his sentence in community service. The official determined that his condition did not permit this, and Nahshon sentenced A. to four months behind bars. A. appealed to the district court, stating that the referral to community service was fictive, only to set the stage for imprisonment. The court turned down the appeal, and A. appealed to the Supreme Court.
On July 1, Supreme Court Judge George Karra rejected A.’s request to hear the case, saying that A.’s arguments against the decision of the official in charge of community service had been heard properly by the district court. A. was sent to prison to serve his sentence.
P., who suffers from PTSD, was sent to prison following the determination by the community service official that he is incapable of performing community service. P. was seriously injured in a fall from his motorbike while at work, and suffers from neurological problems and pain, and was diagnosed with PTSD and emotional disturbance due to his physical and mental condition. He has not worked for two years.
Last November P. was convicted by Magistrate’s Court Judge Eliana Danieli for vandalism, assaulting a police officer and resisting arrest. The arrest occurred during a period in which his case was handled by the National Insurance Institute and he was referred for psychiatric treatment, after he spray-painted abusive words on the wall of a synagogue and the Health Ministry in Petah Tikva. When police came to his home to detain him for questioning, he assaulted one of them and chased one of them with a screwdriver. The police made the arrest after tasing him.
P. said in court that he committed the acts because he was not being properly treated for his disorder. Due to his circumstances, Judge Danieli ruled at first that he be referred to the official in charge of community service for a recommendation. The official informed the court that P. was not suited to community service due to “his work ability and limited functioning.”
P. appealed to the district court, which rejected it. He recently requested that the Supreme Court hear his case, arguing that the official in charge of community service had not shown that he had tried to find a slot for P. to carry out his community service in a place suited to his limitations, insisting that with enough effort, such a place could have been found.
Nine months in jail for small-time theft
B., 34, a mentally ill father of a toddler, was convicted by Haifa District Magistrate’s Court of stealing clothing and other items worth a few hundred shekels from a store in a Haifa Bay mall and a store in the town of Tivon. Court documents reveal the B. is unable to maintain a stable way of life and that his behavior stems from his economic straits.
After B. was convicted of stealing based on his own confession, the official in charge of community service determined that he could not be placed because of his medical condition. The Haifa district prosecutor, Ori Adler, insisted that B. serve nine months in prison.
Luckily for B., and contrary to the other cases mentioned in this report, this time the court intervened in B.’s favor. On May 3, Judge Simi Peleg-Kimalov rejected the prosecutor’s position and sentenced B. to a six-month suspended sentence and a fine of 1,000 shekels ($307). According to the judge, when B. is prevented from performing community service “for conditions not dependent on him or his good will, but rather because of his health condition, which is not his fault, I believe that it would not be just or fair to sentence him to prison instead of community service.”