Israel's Justice Ministry has almost finished drafting a bill that would allow children under 14 to be sentenced to jail.
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Under the bill, which is the brainchild of Justice Minister Ayelet Shaked, jail sentences could be handed down to children as young as 12, though the offender would start serving the sentence only when he turned 14. Prison sentences could be imposed on children younger than 14 only if they are convicted of murder, attempted murder or manslaughter, the draft bill states.
If the bill is passed into law, Israel would become one of only a few Western countries that allow prison sentences for children under 14.
The past year has seen a sharp rise in the number of children and teens participating in terrorist acts or violent demonstrations. In response, the Justice Ministry has taken various steps to stiffen penalties for juvenile offenders.
Among other things, it has backed legislation that would allow fines to be imposed on the parents of minors convicted of stone-throwing; it has also instructed the prosecution to seek to have such minors kept in jail until the end of their trials. And last month, after an attack in which two Palestinians aged 13 and 15 stabbed two people, including a 13-year-old boy, in Jerusalem’s Pisgat Ze’ev neighborhood, the ministry began working on the current bill.
Children below age 12 are currently considered below the age of criminal responsibility and cannot be subjected to criminal proceedings at all. Children aged 12 or 13 can be arrested and tried, but they can’t be sentenced to jail unless they have turned 14 by the time the sentence is handed down. Instead, they can be sent to closed treatment facilities and kept there until age 20.
Under the bill now being drafted, a judge could instead sentence the child to jail, though he or she would be kept in a closed treatment facility until the age of 14. At that point, he would be sent to prison to serve out his sentence, but only after a hearing at which the judge would have to confirm the decision to transfer him to jail.
The bill makes no distinction between juveniles convicted of a terror-motivated crime and those convicted of other crimes.
Aside from the government bill, MK Anat Berko (Likud) has submitted a bill of her own on the issue. Her bill, too, provides for the incarceration of 12- and 13-year-old offenders in a closed treatment facility until the age of 14. But it differs from the government bill in that it allows children under 14 to be given prison sentences only if convicted of terrorist crimes.
Dr. Yitzhak Kadman, executive director of the Israel National Council for the Child, said he opposes both bills.
“Hard cases don’t make good law,” he said. “As a result of the situation and the terrible incidents that have occurred, there’s pressure to find quick solutions. But restraint in legislation is strength, not weakness. We need to consider the ultimate ramifications of this.”
The Association for Civil Rights in Israel published a comparative study Tuesday of how various countries relate to jailing minors. The study found that the vast majority of Western countries forbid jailing children below age 14, and some forbid jailing minors above this age.
Of the 45 countries in Europe, ACRI said, 38 forbid jailing minors under age 14. In Finland, the Czech Republic, Greece, Iceland, Norway, Poland, Portugal and Sweden, children can’t be imprisoned before age 15.
In several other countries, including Armenia, Azerbaijan, Belarus, Ukraine and Kazakhstan, children under age 14 are considered below the age of criminal responsibility, and therefore can’t be punished at all – in contrast to Israel, where the age of criminal responsibility begins at 12.
Only a handful of countries allow children under 14 to be jailed, and then only in exceptional cases. In some of these countries, children below 14 can be jailed only if they are judged to be mentally old enough.
In England, children under 14 can be jailed only for murder or serial offences. France and Holland both permit children under 14 to be jailed in exceptional cases only.
Even in the United States, which has the harshest approach to sentencing in general and to sentencing minors in particular, most states forbid jailing children under 14. For instance, only seven U.S. states allow minors to be tried for murder as adults.
According to ACRI, the Justice Ministry’s Bill doesn’t comply with a key provision of the Youth Law, which states that the need to rehabilitate juvenile offenders takes priority over the need to punish them. Moreover, ACRI charged, the bill contradicts various Supreme Court rulings which concluded that conditions in Israeli jails aren’t suitable for children and could do them excessive harm, which would be undesirable from society’s standpoint.