The Public Defender’s Office has asked the High Court of Justice to expand the authority of judges to issue a non-conviction verdict, in an effort to decrease Israel's conviction rate.
This would apply in cases where there is an absence of proof that a conviction would do the defendant tangible harm.
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Last year, out of 5,688 defendants, 84 percent were convicted of offenses, and only five percent received a non-conviction verdict.
The request was submitted by attorney Moshe Keshales, director of the crime clinic at Tel Aviv University. His request was made on behalf of a woman convicted of assaulting her partner in 2019. The woman, a resident of southern Israel and a mother of three, is an immigrant who is unemployed due to health reasons, and is facing economic hardships.
In 2018, she scratched her partner during a dispute, and was charged with an assault that caused bodily harm. The parole board put her in a treatment program, and her partner said she had apologized for her behavior and had stopped using violence against him.
The board recommended to the Eilat Magistrate’s Court that her pledge to refrain from further violations of the law should suffice. Even so, in their professional opinion, they wrote that a conviction would not harm her ability to function or hurt her chances of getting a job. The court then convicted the woman of assault and gave her a suspended sentence on grounds that it was not proven that a conviction would cause her substantive harm. For similar reasons, the Be’er Sheva District Court rejected her appeal last year.
The Israeli penal code enables judges to determine that a person has committed a crime without actually issuing a conviction. In such cases, the offender may be fined, receive a suspended sentence, be required to do community service or be issued a probation order. This can be done if a conviction would hurt the person’s reputation and their chances of rehabilitation, which could prevent them from getting a job, winning a tender or adopting a child.
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A procedure set by the High Court in 1999 set terms under which a defendant can be punished without being convicted: committing a crime that is not severe and does not prove that a conviction would cause tangible harm to the defendant.
But in a 2018 article in a public defenders law journal, Keshales and Dr. Shai Wozner wrote that the terms for issuing a non-conviction allow for discrimination, where a court may decide to avoid convicting someone with a job but not doing the same for an unemployed defendant, possibly claiming that the person has no job to lose. They added that this presents a future hurdle for employment, which is not, in a sense, tangible harm.
This week, the woman who lost the appeal in Be’er Sheva appealed that verdict to the High Court, asking in effect to amend the conditions for issuing a verdict of a non-conviction in Israel.
“The appellant’s conviction of a low-level crime due to a lack of tangible harm [posed by the conviction] best illustrates the difficulties of the current process,” Keshales wrote in the appeal. He called for cancelling existing requirements and for giving judges greater leeway to decide on a case-by-case basis whether a non-conviction should be granted.
Keshales also called for a conviction in itself to be regarded as punishment so that a discussion about cancelling it may be held as part of the sentencing process. He said that judges “feel increasingly uncomfortable with the terms that have been set” for issuing a non-conviction.
He quoted several judges who have recommended amending these conditions in the past, including Ofer Grosskopf, a Supreme Court justice who, while serving as a district court judge in 2012, wrote in a verdict that “the principle of proportionality in punishment requires that in each case where the court feels the aims of criminal law process can be achieved without imposing a criminal stigma, the court should have the authority to do so.”