Israel's Punitive Policy Disproportionately Hurts Poor, Public Defender Office Says

Report criticizes system allowing citizens to pay fine instead of jail time, says half of those represented by public defender don’t consult with lawyer before police questioning

Netael Bandel
Netael Bandel
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A policeman and car at a Jerusalem coronavirus checkpoint, March 2020.
A policeman and car at a Jerusalem coronavirus checkpoint, March 2020.Credit: Emil Salman
Netael Bandel
Netael Bandel

The policy giving those convicted of a crime the option of paying fines instead of imprisonment disproportionately hurts the poor, according to the annual report released Wednesday by the Justice Ministry’s public defender department.

An excessive number of poor people wind up doing jail time because of the policy, said the report, which also criticized many other aspects of the criminal justice system’s conduct.

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The report warned that 40 percent of those it represents hadn’t received legal counsel before being questioned by police, contrary to the right to an attorney affirmed by the Supreme Court.

Over 90 percent of the public defender department’s clients in 2015 were poor, according to Central Bureau of Statistics numbers. The department took on some 31,000 cases in 2019, in line with the previous five years.

The report also criticized the policy of allowing imprisonment in lieu of payment of a fine, in the cases of those who cannot pay.

“Some 30,000 verdicts including an order of incarceration in place of a fine are handed down annually,” the report stated. “Around 3,000 imprisonment orders are issued annually to debtors, often many years after the original sentence. They lead to the incarceration of hundreds of debtors annually because of failure to pay the fine. The length of imprisonment in place of the fine varies from a few days (in a quarter of the cases) to many months (about 15 percent served between two months and one year). In a few cases, those sentenced served over a year.”

The report also noted that 80 percent of these orders involved debts of under 5,000 shekels ($1,500), and concluded that this policy is wielded “against poor convicts, who can’t afford the fine levied upon them.”

Furthermore, the report said, interest charged on late payments of fines was “troublesome,” noting that by law, “an unpaid fine owed to the treasury is subject to an immediate 50 percent penalty, and 5 percent interest is added to the unpaid balance for every further six months it is not fully paid. This draconian policy means the fine doubles within three and a half years.”

According to the Supreme Court ruling, police investigators are supposed to call in public defenders before commencing the questioning of criminal suspects. The percentage of those requesting a lawyer from the department rose from 56.2 percent in 2018 to 62.1 percent in 2019, the report noted.

“Despite the noticeable improvement, nearly 40 percent of detainees represented by the department still do not exercise their legal right to legal counsel prior to questioning after many years of determined effort by the Public Defender’s Office and hundreds of critical rulings by the courts on this matter,” the report stated.

The report added that “[t]he right of a person to consult with a lawyer before being questioned was meant to ensure the fairness of the investigative process and to prevent wrongfully exploiting the structural gaps between the ones being questioned and the people with the authority to question them.”

It then criticized police behavior, arguing, “Despite the Supreme Court ruling regarding the importance of the right to counsel and the way the police should act accordingly, the reality in the investigation rooms teaches that the Israel Police isn’t diligent in appropriately informing detainees of their right to legal counsel in general, and with the Public Defender’s Office in particular, before questioning them.”

The report also criticized Attorney General Avichai Mendelblit for ignoring appeals by Yoav Sapir, head of the public defender’s department, regarding the problematic use of informants to get suspects to talk.

“Some of the activities rise to the level of criminal offenses,” the report stated. “The national public defender repeated the demand to bring the use of investigators trying to extract confessions up to date, to refresh the rules and to publish them to allow effective criticism by the courts. The attorney general’s response has yet to be received regarding the public defender’s two appeals.”

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