Mandatory Minimum Sentences for Stone-throwing in Israel Will Lead to Injustice

Why should Israeli law include a minimum sentence for stone throwing when there is none for manslaughter, rape or bribery?

Emil Salman

Late last week, and in keeping with a security cabinet decision, the Justice Ministry published the preliminary draft of a law that would mandate a minimum sentence for stone throwers.

Like all legislation that seeks to interfere with sentencing, this is a bad bill that will create distortions, injustice and lack of coherence. It is also an unnecessary bill that will not change the current reality, since the law enforcement authorities' legal toolkit already offers sufficient possibilities without it.

Israel’s criminal legislation is based on maximum penalties as prescribed by law. Moreover, since the passage of amendment 113 of the Penal Code, boundaries have been set that, to some extent, restrict judges’ discretion in appropriate sentencing. Under such conditions, there is no need to dictate minimum sentences to judges – they already do this.

If a judge rules leniently, he must provide his reasons for doing so – just as the new bill states judges can do under extraordinary circumstances. Leaving discretion to judges in these cases contradicts the stated goal of legislating minimum sentence in the first place and creates forced uniformity in sentencing.

The problem with legislating minimum sentences is the arbitrary manner in which the Knesset operates. It does not bother legislating minimum sentences for offenses such as manslaughter, rape or bribery – but it does for stone throwers.

The distortion this creates is not theoretical; it manifests itself in imposing long prison terms on individuals convicted of relatively minor offenses, while criminals who have committed more serious crimes will be released from prison before them. Even in the United States, which is a leader in imposing minimum sentences, the prison population explosion is slowly but surely expanding the discretion of judges to impose sentences.

The bill is also political in the sense that it is driven by a desire to demonstrate that something is being done, and does not meet a real need. It is not based on any research which proves that penalties imposed by the courts for stone throwing are too light and don’t act as a deterrent. There is already discrimination between Arabs and Jews in terms of sentencing for stone throwers, and the concern now is that the proposed bill will make it even worse.

As Supreme Court President Miriam Naor has said, if the state is not happy with the sentence imposed in a case, the prosecution can always appeal it. The late Justice Mishael Cheshin said the court is not like a machine meant to churn out sentences. Criminal punishment is a complex doctrine, and politicians should refrain from using it as a political and populist tool.