Exporting Defunct Sentencing Policies to Other Countries

One of the things comparative law scholars are interested in is the way in which legal policies are adopted in different places in the world. There are nuances and differences that stem from the cultural background. For example, my colleague Jim Nolan has studied the differences between drug courts in the U.S. and their counterparts in Europe and Canada, finding that reforms have yielded somewhat different reforms. He does conclude, however, that the end result is perhaps closer to the American version than these other countries intend.

There seems to be even less restraint when some countries adopt U.S. sentencing policies, despite what we know about their failure and financial implications.

We could take quite a number of countries as an example, but I'm choosing Israel, mostly for reasons of convenience and familiarity with its legal system. Israel has had, since the late 1940s, a penal code based on a less extreme version of indeterminate sentencing: Every offense has a maximum penalty and a few (such as sex crimes and assault on a police officer) have minimum sentences as well. The parole board is allowed to release inmates only after they have completed two-thirds of their prison sentence, so the overall effect of releases is far less extreme than the equivalent in pre-determinate-sentencing California.

The Israeli system has constantly been in a process of Americanization. U.S. legal initiatives arrive in Israel, usually with a 15-to-20-year delay since their implementation there, and adopted without much systematic, evidence-based reflection as to their success.

A few recent examples include a large-scale plan to shift to determinate punishment. Granted, the new system will not consist of legislator-generated "triads", but it will include a sentencing commission, whose membership is yet to be established, which will decide on "median punishments" for all offenses. These will be the starting point for departures, and the law lists a series of aggravating and mitigating circumstances. The former list is much longer than the latter. In addition, Israeli legislators are hard at work expediting their discussion of several punitive suggestions, including harsher punishment in a long series of crimes (with hardly any evidence of a statistical rise in crime rates), and particularly, of a version of the Three Strikes Law, which, in the Israeli case, will include a 12-year imprisonment sentence for the third felony. The law is somewhat less intense than the Three Strikes Law, but its effects on the prison population will be notable.

As of April 2008, Israel had 305 inmates per 100,000 citizens (the U.S. equivalent at the time was 751). I am not sure whether this rate includes Palestinian detainees and have not been able to find out. There are reports that Israel is already seeing a dramatic rise (close to 40 percent) in the number of inmates since the late 1990s. There has been prison litigation with regard to prisoner rights and conditions. In addition, any of these sentencing initiatives does not only have an effect on judicial discretion, ratcheting up sentences, but also on conviction rates. The Israeli system, just like the American one, is adversarial and works primarily through a very high percentage of plea bargains, leading to a 99.8 percent conviction rate. Each of these new litigation pieces serves as leverage for bargaining. What is going on, then? Are Israelis blind to the American crisis? Don't they know this doesn't work?

The answer is, I don't know; however, part of the explanation lies in the triangle of politicians-media-public, which has been analyzed by many scholars as a petri dish for moral panics and harsher sentencing (see for example this terrific piece by Burns and Crawford on the panic surrounding school shootings). The Israeli media is rife with critique of judicial leniency. In some important ways, they are not wrong. Human sentencing and decisionmaking has a quality of mercy that computers and set tables do not have. In 1986, the late Yael Hassin published the findings of a study that compared release rates between the parole board (consisting of a judge and members in therapeutic professions) and computer-generated statistical prevention. The computer predicted more recidivism and was more often right. Maybe this intangible quality of mercy has effects that spill beyond recidivism prediction to sentencing. And maybe that's not necessarily a bad thing; we will never know how many "false negatives" the computer from Hassin's experiment kept within walls, and would not have reoffended had they been released.

Another part of the puzzle may lie in the different nature of Israeli politics. As opposed to the situation in the U.S., criminal justice discourse in Israel (a multi-party system placing the Israeli-Palestinian conflict at the top of its priorities, leaving room for little else) it does not map neatly onto other political issues that generate bipartisan debate in the U.S. So, when such initiatives are brought up, there is little in the way of organized political response against them.

This analysis might, of course, be different for different countries, each of which examines its penal policy through its particular political and cultural lens. The big question that remains is why the decisions to adopt American policies do not take into account the abounding evidence as to their failure and, in these trying financial times, of their fiscal implications.

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This post is based on an idea on which I wrote a short piece in Hebrew with Yosef Zohar. Props to Yosef for coming up with the idea and thinking about it with me.