Israeli Prosecution Urges More Rehab, Less Jail

Commission member says recommendations, if adopted, will cause major change in criminal process

An inmate at Rimonim Prison, near Tel Aviv.
David Bachar

More prisoners should be rehabilitated and fewer incarcerated, a prosecution task force has recommended.

Two years ago, a public commission issued a similar recommendation, based in part on numerous studies which found no evidence that long sentences have a deterrent effect, but did find evidence that prisoners sentenced to jail were more likely to be recidivists than those given alternative sentences. The Justice Ministry then set up an internal task force to study the commissions recommendations, and the current report is the result.

Prof. Oren Gazal-Ayal, dean of Haifa Universitys law school and a member of the commission, termed the task force report one of the most important and comprehensive policy documents the prosecution has ever issued. If adopted, it would foment a major change in the criminal process and significantly increase the number of convicts sentenced to rehabilitation rather than jail, he said.

The fact that it was proposed by the prosecution itself, which naturally tends to seek substantial sentences, is grounds for great optimism, he added.

The task force said that for crimes that merit only short prison sentences, prosecutors should consider asking the court to sentence the defendant to rehabilitative treatment rather than jail, as long as a government social workers evaluation deems rehabilitation likely to be effective. This policy should apply to sentences of up to around two years, it said, though it declined to set a hard ceiling.

According to Israel Prison Service data, most prisoners receive only short sentences. In 2015, for instance, more than half of all prisoners sentenced to jail received sentences of one year or less, and more than three quarters received sentences of two years or less.

But prisoners sentenced to short jail terms arent eligible for rehabilitation while in prison. Group rehabilitation programs are open only to prisoners with at least three months left to serve after deducting their time in pretrial detention, and individual programs are open only to those with at least six months left to serve.

Though prosecutors are authorized to seek sentences lighter than the norm to facilitate rehabilitation, they rarely do so. The task force urged doing so more often to keep more people out of jail.

The report didnt list specific crimes to which the new policy would or wouldnt apply, though it would obviously exclude crimes like rape, since it only applies to minor offenses. But it said that for minor sex crimes, treatment is actually the only effective means of preventing recidivism.

The report listed several criteria for deciding whether to seek rehabilitation rather than a jail sentence. In general, it said rehabilitation should be considered for first offenses if the defendant otherwise leads a normal life. But it listed two exceptions: corruption cases and traffic accidents resulting in negligent homicide.

It also listed one exception in the opposite direction: Rehabilitation should be considered for drug addicts who repeatedly commit property crimes to finance their habit.

Other considerations included whether the offense was premeditated, whether it was connected to organized crime and whether it was ideologically motivated. All these are factors that could indicate the perpetrator is dangerous. An assault due to a quarrel with ones neighbor that got out of hand isnt the same as an assault for racist reasons, the report said.

Prosecutors would also have to take victims views into account when making their decision, just as they do in plea bargains.

Though the report said prosecutors should rely on social workers evaluations of whether rehabilitation is likely to succeed, it also acknowledged that such evaluations are submitted in only a small percent of cases, and are mandatory only for defendants under age 21. It therefore advised that such evaluations be sought in the vast majority of cases where the usual sentence would be a short jail term.

A defendant sentenced to rehabilitation rather than jail should be subject to probation for some amount of time after his rehabilitative treatment ends, the report said. If he violates his rehab commitments during this period, he would be subject to an additional penalty.

But the report also raised questions about how reliable social workers evaluations really are. Task force members said social workers sometimes parrot what the defendant says without verifying it, and are also sometimes pressured to slant their evaluations.

Two years ago, after the public commission chaired by former Supreme Court Justice Dalia Dorner submitted its report, the cabinet adopted its recommendations, but they were never implemented. About a year ago, therefore, commission member Gazal-Ayal submitted suggestions for its implementation to Attorney General Avichai Mendelblit. That prompted Mendelblit to set up the task force, which was chaired by Deputy State Prosecutor Shlomo Lemberger.

Though the cabinet adopted the Dorner report, Gazal-Ayal explained that it is ultimately the prosecutors who decide what sentence to seek. Therefore, experience both in Israel and abroad shows that without a change in approach by prosecutors, these alternatives to jail arent really alternatives.

Some months later, in June 2017, the High Court of Justice ruled that the space allotted prisoners is unconstitutionally small and ordered the government to increase it to three square meters per prisoner within nine months, and four square meters within 18 months. The nine-month deadline expires in March. Thus the Finance Ministry, the Justice Ministry and the Prison Service are currently discussing ways to comply with the courts ruling, including freeing more prisoners on parole, renovating and expanding jails or building new ones.