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In response to the current wave of publicity about violent crimes, the public is calling for harsher criminal sentences. Judges are criticized for handing out lenient sentences while prosecutors are criticized for agreeing to plea bargains that unjustifiably reduce the seriousness of offenses. The solution to the problem, so some would argue, can be found in minimum sentences that require judges to increase the length of prison terms for offenders, and less plea bargaining on the part of prosecutors that would result in longer prison terms.
These critics are wrong and would, with their suggested reforms, give the wrong medicine to the criminal justice system.
Research shows that harsher sentences rarely translate into more effective deterrence of crime. The strongest correlate to deterrence of crime is a high probability of getting caught and brought to court for a criminal trial.
As the probability of getting caught goes up, so does the power of deterrence. The straightforward way of translating this principle into better crime control is to increase the ability of police to identify criminals and to bring them to court. This means that we need more police on the streets, better surveillance and intelligence services and more efficient use of courts. We do not need harsher sentencing in most areas of law enforcement, with some exceptions, notably in traffic offenses.
IT IS important to point out that there has been a bad experience with minimum sentences. In the United States there has been a retreat from such an approach. The most notable result of the minimum sentence in the US was a huge increase in the prison population, with funds spent on housing offenders for extra months and years in costly prisons, rather than spending the same funds on better detection of crime and prosecution of more offenders. No one in the US was able to show that violent crime was reduced because of longer sentences.
Finally, last year the conservative US Supreme Court struck down as unconstitutional the idea that judges could be compelled to hand out minimum sentences. Not only were compulsory minimum sentences found to be a violation of due process, but no gain in deterrence could be proved from this restriction on judicial discretion. In the huge federal system, mandatory sentencing guidelines were thrown out. We should not adopt them in Israel as if this would be a solution for what may be, but has not been proven to be, a rise in violent crime.
We do however have a problem. While Israel is blessed with a very high quality judicial system, it is outrageously overburdened. Those in government responsible for managing prosecutors and courts take very great care in performing their tasks. The problem is that no single judge or single prosecutor, however skilled and however committed, can properly handle dozens of criminal cases daily, and this is the norm in Israel's high volume criminal courts.
In the great bulk of criminal cases - involving low-level violence, property crimes and possession of drugs - the pending cases must be hurried through the magistrate's courts to make room for the new cases, not because the judges do not care, but because they are under great pressure to remove the backlog and get cases finished.
In most criminal prosecutions, prison sentences are rightfully not meted out by judges. The problem is that the judges are forced to expedite these cases in their courtrooms in a way that often prevents the offenders from understanding the meaning of what goes on in court - that a criminal conviction is a serious matter, that a fine must be paid, that a suspended sentence might be activated in the future.
IN SERIOUS criminal cases, the high case load in the district courts causes the very opposite problem - cases are delayed due to lack of available trial dates; it takes months to get a case started and often years to get it finished. This, understandably, creates a strong feeling in the public that justice is too slow in being served. The problem in the serious criminal cases is not that the judges or prosecutors lack the will to use the full force of the law, but they lack the time to give full attention to many serious cases at the same time.
The very high speed of the criminal trials in the magistrate's courts and, quite ironically, the low speed of the most serious criminal trials in the district courts simultaneously downgrades the impact of the criminal law.
To increase the effectiveness of criminal trials, we need to think carefully about how to use our very dear judicial resources. We need a substantial increase in the number of judges and courtrooms, and we will need, at the same time, more prosecutors, more law enforcement investigators and more public defenders.
It often seems too easy to call for more resources as the solution for a problem, but the argument for courts and for law-related agencies is a distinctively strong one: They are desperately overburdened and thus need more resources to give more attention to their caseload.
This should translate into better justice and more effective crime-control, but not necessarily longer prison sentences.
The writer is a former chief public defender in the Ministry of Justice, a professor of law at Tel Aviv University and chairman of the Institute of Criminal Law.
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