Can a private company be allowed the government's unusual right to deprive citizens of their freedom?
By DAN IZENBERGnew prison 298 (photo credit: Courtesy Photo)
As the annual report of the Public Defender's Office clearly demonstrates, the state of the country's prisons, lockups and courthouse jails is grim.
The overcrowding and run-down conditions in the wards and cells have not improved over the past few years and, unless there is a dramatic change, are bound to deteriorate even more in the years to come.
The government believes, however, that dramatic change is already here on the wings of private enterprise. On November 11, 2005, it signed a contract with a private consortium headed by Israeli businessman Lev Levayev to build and run the first privately owned prison in the country. The facility, which is to be built near Beersheba, is scheduled to house 800 prisoners.
Not everyone regards the private prison as an appropriate solution to the problems facing Israel's prisons. Indeed, there are those who believe the remedy is worse than the disease.
Last year, the Human Rights Division of the Ramat Gan Academic College of Law petitioned the High Court, asking it to reject the Knesset law that paved the way for the facility. The petitioners charged that the law violated the Basic Law: Government and the Basic Law: Human Freedom and Dignity.
They wrote that the government was delegating one of its most fundamental and "core" responsibilities to the private sector, thereby losing part of its sovereign power. According to one expert quoted in the petition, "The ability to deprive citizens of their freedom, force them to live behind bars and totally regulate their lives is unlike any other power the government has. The responsibility for corrections goes beyond issues of cost efficiency and touches on whether a private company should be able to regulate the affairs of a citizen deprived of his freedom."
The petitioners also charged that giving private individuals so much power over others was dangerous since they were not acting in the name of the state and the state would have difficulty controlling their actions.
In response to the petition, the state emphasized precisely the improvements in the physical standards of the prison that the private owners would provide. In its tender, the state had demanded that the maximum standards in the state-owned prisons become the minimum standards in the new prison.
Thus, for example, the average amount of living space per prisoner in the new facility will be 5.28 square meters. The ratio of social workers to prisoners will be one to 80, compared with one to 120 in the state-owned prisons.
The High Court of Justice has made it clear that it takes the issue very seriously. It has appointed a panel of 11 justices to hear the petition. It is obvious that there is a problem in giving private individuals almost total power over other human beings, including the right to punish and discipline them.
On the other hand, the court is aware that the government is either unable or unwilling to invest the resources necessary to make the necessary improvements in the facilities. This is the dilemma that the court will face.
Of course, it should be noted that even if the court endorses the private prison, the new facility will do nothing to improve the other prisons, let alone the police lockups and courthouse jails. The government will continue to bear responsibility for them.
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