The prosecution’s proposed plea bargain with former Prime Minister Benjamin Netanyahu contains an inherent contradiction: by insisting that the amended indictment still stresses the gravity of his misdeeds, it risks leading the court to reject the proposed sentence as too lenient.
Retaining a harsh indictment is necessary to ensure a court ruling that Netanyahu’s crimes involved moral turpitude, which Attorney General Avichai Mendelblit deems as a nonnegotiable condition for a deal. But the proposed sentence, several months of community service, doesn’t fit the gravity of the charges.
To balance its leniency in substituting community service for jail time, a proposal that even some Justice Ministry officials have criticized, the prosecution intends to demand a fine of hundreds of thousands of shekels.
The charge that Netanyahu received lavish gifts from businessmen would be enough on its own to justify this, one senior law enforcement official said. And when you add the charge that he granted regulatory relief to Bezeq in exchange for slanted coverage by Bezeq’s internet news site, Walla, “a heavy fine would have to be imposed to fit the gravity of the crimes,” he added.
Netanyahu’s lawyers haven’t yet agreed to Mendelblit’s terms – an admission of breach of trust in both these cases (the bribery charge in the Bezeq-Walla case would be dropped), a finding of moral turpitude and a sentence of community service. Netanyahu is unhappy with both of the latter.
“It’s one thing to admit to crimes he didn’t commit,” an associate said. “But why should a former prime minister be humiliated by having to seal boxes in some factory?”
The prosecution still hasn’t held a formal discussion on the proposed deal. If Netanyahu accepts Mendelblit’s conditions, it will then start negotiating with the defense on which details the amended indictment will include, the size of the fine and the number of months of community service. The first two issues are expected to spark disagreements between the sides.
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Courts usually don’t intervene in plea bargains, but occasionally, they do reject a deal for being too lenient. That happened with former Chief Rabbi Yona Metzger, who was convicted of taking bribes in a plea bargain.
The deal called for a sentence of 3.5 years in prison. But the Jerusalem District Court added a year, saying the original sentence “doesn’t serve the public interest.” Only after Metzger appealed, and the prosecution explained the evidentiary problems in the case, did the Supreme Court reinstate the original deal.
The plea bargain in former Prime Minister Ehud Olmert’s obstruction of justice case was also rejected. The deal called for his sentence on two counts of obstruction to completely overlap the sentence he was already serving for bribery, meaning he wouldn’t spend any additional time in jail. But the Jerusalem Magistrate’s Court sentenced him to spend an extra month there.
In contrast, when former MK Basel Ghattas was convicted in a plea bargain of smuggling cellphones to jailed terrorists, the Be’er Sheva Magistrate’s Court criticized the deal’s two-year sentence as insufficient given the gravity of the crime, but nevertheless upheld it.
The Supreme Court has issued several rulings relating to when courts should intervene in plea bargains. In one, from 1992, it wrote that the trial court must consider not only that particular case, but also the cases that will come after it.
“Shaping sentencing policy is also part of the court’s job, and when, in the court’s view, the sentence agreed on in the plea bargain deviates from the appropriate sentencing policy, obviously it won’t lend a hand to what was agreed,” then-Justice Eliezer Goldberg wrote in that ruling. If the plea bargain’s sentence is significantly more lenient than it should be, he explained, it “misses the target of criminal law and doesn’t satisfy the element of deterrence – both general and individual – that is necessary to protect the social value that has been put at risk.”