When justices get their sums wrong

We must not fail to take notice of judicial superciliousness and aloofness.

By
January 15, 2011 21:46
3 minute read.
Meital Aharonson z"l.

Meital Aharonson 58. (photo credit: Courtesy)

A panel of three Supreme Court justices saw fit last week to significantly reduce the sentences meted out almost a year ago to two defendants involved in a 2008 hit-and-run that left 26-year-old Meital Aharonson dead and that doomed her friend Mali Yazdi to life in a wheelchair.

In March 2010, Tel Aviv District Court Judge Zvi Gurfinkel sent driver Shai Simon to a total of 20 years behind bars – 12 for killing Aharonson, two for injuring Yazdi and another six for abandoning both after knocking them down. His passenger, Shalom Yemini, was sent up for five years because he too failed to help the victims.

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The Supreme Court panel, however, pronounced both sentences excessive, essentially because they were harsher than what our courts generally mete out, even though they remained well short of the 30-year maximum allowed by the law.

Accordingly, Simon’s prison term was decreased to a cumulative 14 years, while Yemini’s was halved to 2.5 years. In practical terms the actual time served will diminish further because both convicts are likely to enjoy a third off for good behavior. Hence Yemini may be released in a matter of months.

The Supreme Court’s message, intentional or otherwise, is that judges ought not attempt to deter future potential miscreants nor register their abhorrence, but instead aspire to sentence according to the average customary for a given crime.

Though legally sanctioned, unfeeling judicial arithmetic is morally dangerous. Besides displaying insensitivity for the bereaved Aharonson family and the disabled Yazdi, this judicial numbers-game unconscionably ignores the public interest.

On the fatal night, Simon and Yemini were stopped by police for a breathalyzer test. Both sped off, running numerous red lights before they ran over Aharonson and Yazdi. After wildly fleeing the accident scene, they premeditatedly tried to pin blame on each other to obscure the driver’s identity and thereby, by bamboozling investigators, escape punishment.

To be sure, the Supreme Court justices expressed verbose repugnance for the defendants’ behavior. Nonetheless, the justices preferred to focus on pedantic adherence to the principle of sentencing consistency rather than on Simon’s and Yemini’s very calculated cover-up tactics and contempt for human life. Uppermost in their consideration was proportionality to punitive precedents in similar circumstances.

If societal intolerance to crime were to be reflected in sentencing severity, the panel ruled, sentences must be increased only in very gradual increments, to avoid even the semblance of vindictiveness or disproportion.

While this philosophy may make ample sense in narrow academic confines, it’s sure to undercut any heightened deterrent. Joyriding louts are unlikely to be impressed by bureaucratic-mindedness and legalistic theory. Obligatory rhetorical condemnation from the bench for the offenders’ callousness doesn’t mitigate judicial injudiciousness.

THERE ARE approximately 800 hit-and-runs in this country annually, often triggering lots of squawk in our public discourse about waning respect for our courts. But the handwringing is disingenuous if we fail to take notice of judicial superciliousness and aloofness.

It’s distressing enough when lower-court judges take the easy way out and accept morally offensive plea bargains, as was the case last July when the tragic hit-and-run that left 12-year-old Amir Balahsan of Yehud in an irrevocable vegetative state produced what amounted to a penal slap on the offenders’ wrists. Driver Pnina Toren and passenger Omri Naim were sentenced to three years.

It’s doubly troubling that when a judge, like Zvi Gurfinkel, does the right thing, he is overruled by the highest court in land, and that on technical and pedestrian grounds.

We have no way of knowing whether the three panel members are at all familiar with the observation of Earl Warren, America’s legendary 14th chief justice, that “it is the spirit and not the form of law that keeps justice alive.” But their decision appears to indicate that they prefer form to spirit.

This affects the safety of us all and chips away at our trust in the system. Justice not only has to be done; it has to be seen to be done for the public to maintain faith in its functioning.


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