Olmert’s Sentence Seems Gratuitous, Even Vengeful

Israel’s former PM’s six year prison term is a tragedy for Israel and Jews worldwide. The judge used his long record of public service against him, rather than to his credit.

Reuters

I have known Ehud Olmert for many years, and I consider him a friend.

I first met Ehud when he was the mayor of Jerusalem, and I got to know him when he became a national political figure and ultimately Israel’s prime minister. He was a great prime minister who knew when it was necessary to make war and when it was essential to try to make peace. He ordered Israel’s civilians to be protected when rockets rained down on Sderot, and he defied the wishes of the American president when he ordered the attack on Syria’s nascent nuclear weapons facility. He offered the Palestinians a generous peace proposal that, had it been accepted, would have ended the conflict and establish a viable Palestinian state alongside a secure Israel.

Yet when the judge Tuesday imposed a six-year sentence on Olmert for conduct that went back to his years as mayor of Jerusalem, he apparently refused to give the former prime minister sufficient credit for his good works – most of which came after the events for which he was convicted. To the contrary, the judge seems to have held Olmert’s distinguished political career against him. He justified the long sentence, at least in part, on the fact that Olmert had been a public servant and that his conduct as mayor of Jerusalem made him the equivalent of a traitor to the nation-state of the Jewish people. This seems grievously wrong to me.

I am neither an expert on Israeli sentencing law, nor am I intimately familiar with the underlying allegations in the criminal case against Olmert. But it seems wrong for a judge to consider a defendant’s long record of public service only as an aggravating matter in sentencing and not as a mitigator of a harsh sentence. The Supreme Court of Israel will ultimately decide whether the six-year sentence was justified as a matter of law, but it seems clear to me as an outside observer that it is excessive as a matter of justice.

A proper assessment of the role to be played by Olmert’s long and distinguished career as a public servant would give him significant credit for his public accomplishments. The fact that he is a well-known and admired public figure around the world, by itself, brings added punishment and shame to his sentence. Even if he had been sentenced to the community service that his lawyers requested, the reality of a conviction coupled with a seven year disqualification from running for office, would constitute sufficient added punishment for any abuse of trust. Requiring this 68-year-old man to spend many years behind bars seems gratuitous, even vengeful.

The Bible commands that we seek justice. Its language – “justice, justice shall you pursue” – suggests that genuine justice can never be singular. One form of justice focuses on the crime itself, while the other form of justice focuses on the person being punished. In this case, the judge seems to have failed to balance the two. Moreover, he also seems to have neglected another important principle of justice and lenity: That aggravating factors should generally be limited to circumstances that existed at the time of the alleged crimes, while mitigating factors may include circumstances that came into existence after the alleged crime. Perhaps the Supreme Court will right these wrongs, if it gets to review the sentence.

The High Court may never get to review the sentence, however, because as I understand it from several Israeli lawyers, there are significant legal issues that may cause the conviction to be reversed or modified. Israel has a long history of indicting and convicting public figures, only to see the convictions reversed or modified on appeal. I am certain that the Supreme Court of Israel will scrupulously review the record in this case, as it does in all criminal cases.

While this review process in underway, Olmert should be permitted to remain at liberty pending completion of the appellate process. He is, of course, neither a flight risk nor a danger to the public. Were he to be remanded to prison, and were his conviction then to be reversed, he would not be able to get back the months or years of unwarranted confinement. But were he to remain at liberty, and then have his conviction and sentence affirmed, he could serve his entire sentence. Accordingly, the balance should be struck in favor of liberty pending appeal.

Whichever way this case ultimately ends, it is a great tragedy for Israel and for the worldwide Jewish community, whenever a beloved and distinguished figure is convicted and sentences for a crime. Ehud Olmert, though controversial among right-wing Jews in America, is a respected and beloved figure throughout the Jewish world. I am sure I speak for many when I express sadness regarding his conviction and sentence. I am sure I also speak for many when I express confidence in the Supreme Court of Israel and its long and distinguished record of applying the rule of law with compassion and equality to all of its citizens, regardless of rank.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard, a practicing criminal and constitutional lawyer and the author, most recently, of “Taking the Stand: My Life in the Law.” 

Reuters