Civil Fights: Why criminals go free while the innocent sit in jail

Technical problems - as well as judicial activism - drag out legal proceedings.

prison jail good 224 88 (photo credit: Courtesy)
prison jail good 224 88
(photo credit: Courtesy)
Last week, the Supreme Court freed a convicted child molester until it hears his appeal, saying that since its heavy workload precludes it from hearing the case in the next 30 months, his appeal would be moot if he had to begin his 30-month sentence now. This problem is not unique to the Supreme Court: Lower courts have also been releasing potentially dangerous people due to inability to hear their cases in a timely fashion. Last month, for instance, the Tel Aviv District Court released the Abu Ghanem brothers to house arrest - although they had confessed to making their sister the seventh of eight Abu Ghanem women to be murdered in "honor killings" over the past six years - because after two years in detention, their trial was still nowhere near completion. The converse is also true: People who are ultimately acquitted sometimes spend years in jail or under house arrest - with devastating consequences for their work and family life - before a court reaches its verdict. In 2005, for instance, the Jerusalem District Court awarded a defendant NIS 100,000 in compensation for having spent almost two years in detention on charges that were ultimately withdrawn when the prosecution's chief witness proved hopelessly unreliable. Nor are civil cases immune from this plague. A recent World Bank study found that enforcing a contract via Israel's courts takes, on average, 890 days, or almost two and a half years. That is more than twice the norm in Israel's main competitors, the OECD nations, which makes Israel a less attractive business venue. THE INORDINATE length of Israeli legal proceedings stems partly from relatively easy-to-solve technical problems. For instance, the Supreme Court is supposed to have 15 justices, but currently has only 12, due to foot-dragging by the Judicial Appointments Committee; several lower courts are similarly short-staffed. More cases should, as Justice Minister Daniel Friedmann recently proposed, be heard by one judge rather than three (especially since Israeli law grants an automatic right of appeal, and appeals are always heard by three judges). Cases could be shifted from courts with heavier workloads to those with lighter workloads. And so forth. But there is also a major non-technical problem, which is less easily solved: Israeli courts spend far too much time setting national policy - a job that properly belongs to the elected government - at the expense of ordinary civil and criminal cases. This is especially true of the Supreme Court, which now routinely decides issues that, during its first four decades of existence, it deemed beyond its purview: It vetoes cabinet appointments; dictates budgetary priorities; grants constitutional status to rights that the Knesset explicitly omitted from the Basic Laws; intervenes in army operations during wartime; and sets policy on issues ranging from immigration to the separation fence to gay marriage. Not only do such issues account for a non-negligible proportion of the court's caseload, but each such case consumes far more time than an ordinary civil or criminal appeal. Take, for instance, the petitions against a temporary law restricting Palestinian immigration. They were heard by 11 justices, compared to three for ordinary cases. They involved multiple hearings, compared to one for ordinary cases. The verdict was 263 pages long, with each justice writing his own contribution; a normal verdict is typically only a few pages. And then, because the Knesset extended the law, the whole process began again: New petitions were filed against the extension, and seven justices are now reconsidering the issue - whereas ordinary appeals are generally heard only once. Moreover, the whole dispute revolved around whether the law unduly infringed on a "right to marriage" - a right the Knesset not only never legislated, but deliberately omitted from the Basic Laws. Thus the entire lengthy process stemmed from the court's assertion of a new constitutional right, in defiance of the only body legally mandated to create such rights! ASIDE FROM the burden such activism imposes on the court's own caseload, it also has a trickle-down effect: Many lower court judges take the justices as their model and conclude that they, too, should set policy rather than merely applying the law. This is especially true because the justices dominate the Judicial Appointments Committee, so lower court judges must win their approval to gain promotion. And with activist justices, activism is naturally seen as the way to do so. Thus you have numerous rulings like the Nazareth District Court's 2004 decision that the Inheritance Law applies to gay couples, even though the law itself defines a couple as "a man and a woman." The case would have ended swiftly had the court simply stuck to the letter of the law, dismissed the suit and told the plaintiff to complain to the Knesset. Instead, numerous hearings and a lengthy verdict were needed to explain why "a man and a woman" really means "two men." Curbing the Supreme Court's excessive activism - which in turn would moderate lower court activism - is far more complex than appointing a few new judges. It will almost certainly require legislation to reinstate the norms that the court itself practiced during its first four decades: limits on standing (who can petition the court) and justiciability (which issues the court can hear); a prohibition on overturning government policies merely because the court deems them "extremely unreasonable" (a decision other democracies leave to the voters); and perhaps limits on its right to overturn legislation. Additionally, the Basic Laws should be amended to clarify the rights they enshrine and make them less liable to infinite judicial expansion, and the judicial appointments system must be changed, so that justices no longer pick their own successors. And all this legislation must be carefully crafted to impose sufficient curbs without destroying the court's genuinely important role as a check on the other branches of government. Nevertheless, this is essential if Israel is ever to have a functioning court system. Otherwise, we will continue to see criminals roaming the streets because the courts have no time to hear their cases, even as innocent men sit in jail for the same reason.