Less Discretion for Judges Means Harsher Sentences for Convicts, Study Finds

Survey was done on serious traffic convictions; new study of drug crimes showing similar results, says Tel Aviv University researcher.

The Tel Aviv District Court, in 2015.
Eyal Toueg

Ever since a law was passed in 2012 to limit judicial discretion in sentencing, sentences have become significantly lengthier, a new study has found.

The goal of the law was to ensure that people who committed similar crimes in similar circumstances wouldn’t receive widely differing sentences just because their cases were heard by different judges. But critics warned at the time that it would lead to significantly stiffer sentences, among other reasons because it would reduce the weight accorded to each defendant’s individual circumstances.

The new study, by attorney Liora Avnaim-Pesso of Tel Aviv University, shows the critics were right. Avnaim-Pesso examined more than 1,000 sentences handed down both before and after the law passed, at every level of the court system, for a defined list of traffic offenses: hit-and-run accidents, negligent homicide, drunk driving, reckless driving, speeding to an extent that endangers human life, and driving without a license.

Before 2012, the average sentence for these crimes was about nine months in jail. But after the law’s passage, the average sentence rose to 14.5 months.

Avnaim-Pesso, who conducted the study under the direction of Dr. Shay Wozner and Prof. Alon Harel, said she decided to focus on traffic violations because they are “more technical, with less room for psychological influences on the judges, since the hearings deal less with circumstances and aren’t very emotional.”

Now she is expanding the study to other crimes, starting with drug offenses. Based on very preliminary data, “I can say the findings appear similar,” she said.

These stiffer sentences are diametrically opposed to the recommendations of a public committee on sentencing policy headed by former Supreme Court Justice Dalia Dorner, which the cabinet adopted earlier this month. The Dorner Committee concluded that not only do stiffer sentences not have a deterrent effect, they actually increase the likelihood of recidivism. Moreover, it said, rehabilitation outside of prison is much cheaper and more effective than jailing criminals.

The cabinet also agreed on various practical measures, including setting up a special Justice Ministry department to scrutinize any bill seeking to raise sentences; establishing four more community courts alongside the two that already exist; and allowing sentences of up to nine months, rather than the current ceiling of six, to be served through community service rather than in jail.

Israel’s experience with attempting to make sentences more uniform echoes America’s experience. In 1984, the United States enacted rigid sentencing guidelines for federal courts that greatly reduced judicial discretion. The result was significantly longer sentences and a massive increase in the number of people sitting in jail, from 200,000 in the 1970s to 1.4 million in the early 2000s, according to reports submitted to the U.S. Commission on Civil Rights.

In 2005, the U.S. Supreme Court ruled the mandatory guidelines unconstitutional, so they are now optional. Yet most judges still use them.

Israel’s law was spurred by several studies showing vast differences in sentencing by different judges. One seminal study was published in 1988 by Dr. Yael Hassin and Prof. Mordechai Kremnitzer. It examined the sentences for running a red light handed down to 200 drivers in town A and 295 in town B, and found that 95 percent of the defendants who lost their licenses were tried in town A. It also found that non-Jews lost their licenses 2.3 times more often than Jews did, but that was primarily because most were tried in town A.

The study also found significant differences among different judges in the same town.

Law also widened discrepancies between judges

Yet the 2012 law failed even in its stated goal of reducing such discrepancies, Avnaim-Pesso found. In fact, she wrote, the gaps have actually widened.

Avnaim-Pesso attributed this mainly to a flaw in the law itself: Instead of setting actual sentencing guidelines, it instructed each judge to determine a “sentencing range” that would apply to every defendant convicted of that crime under similar circumstances. It also instructed judges to base these ranges on the sentences proposed by prosecutors and defense attorneys.

Consequently, Avnaim-Pesso said, “Each judge is likely to determine the range based on the considerations and precedents raised by the parties to the case. If the parties bring extreme examples, this is liable to lead to imposing anomalous sentences and to increased variability.”

Former District Court Judge Oded Mudrik said he opposes rigid guidelines and believes some variability in sentencing is essential. Nevertheless, he said, “The issue of setting an almost infinite range is truly problematic in my view, because you can present infinite examples of lenient or strict sentencing.”

Edna Bekenstein, another former district court judge, criticized the law from the opposite direction: She deemed it too inhibiting. “There’s a feeling that the judge’s hand trembles lest the sentence not be inside the box, either too lenient or too strict,” she charged.

Yet another problem, Mudrik said, is that the magistrate’s courts are overburdened, and judges simply don’t have time to carry out the kind of thorough investigation into proper sentencing ranges that the law would require to work properly.

A previous study conducted by Avnaim-Pesso together with Shai Danziger and Jonathan Levav concluded that overburdened judges indeed have an impact on sentencing. That study examined parole board hearings and found that the likelihood of parole being granted fell as the number of cases increased. It also found that the amount of time devoted to each case fell as the day wore on, and that while a prisoner whose case was heard at the beginning of the day had a 65-percent chance of getting parole, one whose case was heard at the end of the day had only a 10-percent chance.

The Justice Ministry is aware of the problems with the 2012 law and has submitted a bill, which has already passed its preliminary vote, to establish a committee that would issue recommended sentencing ranges. The 12-member committee, to be headed by a retired Supreme Court justice, would conduct research into the sentencing ranges commonly used by courts today and then make its own recommendations.

However, the bill would also allow judges to deviate from these ranges if the defendant’s personal circumstances were exceptional. Today the law permits deviation from the range only to further the defendant’s rehabilitation.

The Holyland corruption case highlighted the need for a broader exception clause. Last year, the Supreme Court reduced former Jerusalem mayor Uri Lupolianski’s sentence from six years in jail to six months of community service, even though it agreed the stiffer sentence would normally be appropriate, because imprisonment would almost certainly worsen his serious health problems and shorten his life. The justices acknowledged that current law didn’t allow them to take such considerations into account, but asserted, “The existing normative situation is undesirable.”