Israel's Public Defense: No New Detainees Until Prison Overcrowding Ends

Public defenders ordered to argue against custody until state complies with High Court ruling increasing cell space

FILE PHOTO: An Israeli inmate walks through the Rimonim prison
David Bachar

The head of Israel’s Public Defense has ordered all public defenders to argue in court that no one should be sent to an incarceration facility until the facilities meet the minimal standards set by the High Court of Justice.

The court had ordered the state to ensure that all prisoners and detainees have at least three square meters of space by March 15, but the state hasn’t complied.

In his instructions to public defenders, National Public Defender Yoav Sapir argued that sending people to jail or prison under conditions that the court has said violate their rights “presents concrete constitutional and ethical difficulties” because it violates the prohibition against “humiliating punishment and cruel treatment.”

If a crime is serious enough that jail is nevertheless warranted, Sapir wrote, public defenders should use this argument to demand relatively short sentences. Alternatively, if the defendant agrees, they can ask that implementation of the sentence be postponed until the state meets the court’s requirements.

During bail hearings, Sapir said public defenders should argue for alternatives to detention, such as house arrest. The lockups where defendants are kept prior to conviction are often even more crowded than the prisons, he noted, and it’s especially important that defendants not be held in such conditions, both because this creates “an enhanced risk that the suspect’s spirit will be broken, sometimes to the point of bringing him to make a false confession,” and “because of the presumption of innocence retained by everyone at this stage.”

Public defenders should also use the overcrowded conditions to argue for prisoners’ releases at parole hearings, Sapir continued. Because the court ruled that allotting prisoners less than three square meters of space constitutes “cruel and humiliating” punishment, public defenders should demand that parole boards release any prisoner held in such conditions, he said.

Moreover, he argued, overcrowding is liable to interfere with prisoners’ rehabilitation. For instance, it’s hard for prisoners to study under such conditions. Overcrowding also makes it hard to concentrate or even to sleep, which undermines the prisoner’s ability to complete “exhausting rehabilitation and therapy programs,” he wrote.

If courts and parole boards adopt his office’s position, Sapir noted, the reduction in the number of prisoners will make it easier for the state to comply with the High Court’s ruling, thereby preventing the need for other solutions that would violate prisoners’ rights. He was presumably referring to the state’s request to the court last week to postpone implementation of its ruling.

But the justices appeared unenthusiastic about that idea. Instead, they proposed that the state pardon people convicted of minor offenses, or alternatively, start housing prisoners in mobile homes or the newly vacated open detention facility at Holot, which was previously used for asylum seekers.

The state is supposed to give the court a detailed plan for implementing its ruling later this week. At a meeting Thursday convened by Attorney General Avichai Mendelblit, the proposals discussed included building a temporary detention facility at Be’er Sheva’s Ela Prison and building a tent city to house prisoners at Ketziot Prison.

The Justice Ministry said the relevant agencies have been holding “feverish discussions” on the issue, but it does not divulge details of internal discussions. “When final decisions are made, the state will bring them to the High Court,” it added.