Israeli Ruling on Prisoner Rights Could Mean Big Bill for the State

Supreme Court Justice Elyakim Rubinstein has set a deadline to increase the minimum living space for inmates

Yasmin Gueta
Jasmin Gueta
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A view of the inside of an empty prison cell.
Prison cell (illustrative). Convicted rapist Yaniv Nahman will not spend time in jail. Credit: Dreamstime
Yasmin Gueta
Jasmin Gueta

Unless Israel reforms its sentencing policies, the government could find itself with a massive bill to expand the living space it gives prisoners after Supreme Court Justice Elyakim Rubinstein set a deadline Tuesday for improved conditions.

Under the ruling, one of two Rubinstein issued on the final day of his 17-year term as a justice, the state has nine months to ensure that all of the country’s prisoners have at least three square meters (32 square feet) of living space within nine months and at least 4.5 square meters within 18 months.

Currently prisoners get just 3.16 square meters on average, including toilet and shower facilities, according to the prison service. Some 40.5% of inmates have less than three square meters and only 21% more than 4.5.

Responding to a petition by the Association for Civil Rights in Israel and other groups, Rubinstein said conditions did not meet the prison service’s standard or Israel’s Basic Law on Human Dignity and Liberty.

A 2013 government commission found Israeli prison crowding among the worst in the Western world and said poor conditions undermined efforts to rehabilitate convicts.

The government, in presenting its case in court, warned that increasing living space to 4.5 square meters could cost some 2.7 billion shekels ($770 million). Building a new prison that can house 1,000 inmates costs about 350 million shekels, and hiring to meet Rubinstein’s minimum would require taking on 1,300 new prison staff.

Lawyers for the state said that demanding as Rubinstein did that the government act within months would entail a major budget commitment.

In his ruling, Rubinstein noted the cost involved. “An immediate increase in the area of living would impose a significant burden on the state,” he admitted, but said there were other says to deal with the problem besides massive construction of new facilities.

One is to expand existing prisons, which is cheaper, and the other is to reconsider how prisoners are punished. He recommended that the justice system make use of halfway houses, fines and suspended sentences to reduce the prison population.

Rubinstein’s suggestions make sense, said Prof. Oren Gazal-Ayal, dean of the law faculty at the University of Haifa and an expert in sentencing law and law and economics.

“There’s no need to solve the problem with construction. The only way is with alternatives to serving time, which means it doesn’t have to involve a major financial burden,” he said. “In the medium term it could even mean savings because the cost of keeping a prisoner today is 120,000 shekels a year. The alternatives to serving time cost a lot less.”

But Gilad Barnea, the attorney who led the successful drive to block the government’s plan to privatize prisons, said Israel needed both reforms and greater spending to upgrade and replace its prisons.

Barnea said Rubinstein’s ruling was important because it said human rights could not be sacrificed for budgetary reasons. In any case, he added, the costs are not out of the reach of the prison service and the Public Security Ministry.

“The state should long ago have closed down and razed prisons from the days of the British Mandate – there’s even one from the Ottoman era – and built modern prisons in their place,” Barnea said. “Now they’ll have to do what they’re ordered to do.”

He also said the authorities should do more to ensure equality of living space and conditions among inmates. “There are convicts who enjoy deluxe conditions – [former Prime Minster] Ehud Olmert, for example. We need to aspire to prisoner equality.”

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