The "Anti-Pardon" Bill: Laws are not a Substitute for a Backbone

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In an article in The Times of Israel, Attorney Amir Fuchs argues that legislation that would give judges the authority to sentence murderers to life in prison with no possibility of pardon is misguided and will not prevent terrorists from being released in future prisoner exchanges.

As part of a series of steps designed to tie its own hands, which included the passage of Basic Law: Referendum, the Israeli government approved a bill to amend Israel's Basic Law: The President in a way designed to prevent murderers from being released from their prison sentences. Contrary to popular belief, the proposed legislation, which passed a preliminary reading in the Knesset, will not prevent the release of prisoners who are in jail today or of accused criminals whose verdicts are pending. Rather, it would give judges in future cases that take place after the law comes into effect the discretion to rule that a life sentence is not subject to pardon or commutation by the President of Israel, and to hand down such a decision at the time of sentencing, recording the special reasons for it in writing. It should also be noted that this bill is not limited to cases of terrorism, and would apply to any case of murder; it includes the murder of children among the examples cited in its explanatory notes.

Given the above, invoking this bill as if it can have the slightest bearing on Israel's policy in dealing with kidnapping—and certainly in the current case of the abduction of teenagers Gilad Shaar, Naftali Fraenkel, and Eyal Yifrach, or any kidnapping in the near future—is simply wrong. Even if the law had passed its third reading yesterday, the state would be able to release any prisoner that it wanted to release today. In addition, the fact that a government that has previously released murderers en masse, whether as part of the Shalit deal or in the context of the negotiations with the Palestinians, is now trying to tie its own hands and prevent itself from freeing murderers is both puzzling and ridiculous. Is this not an admission that the government is not in control of its own actions and cannot make rational decisions? Moreover, the keys to these handcuffs are always in the government's pocket. In the past, when it was necessary in order to form a government, the Knesset increased the maximum number of cabinet ministers by changing a Basic Law. If so, it is clear that if the Knesset were to want to change a Basic Law in the future, whether to facilitate a peace treaty or aid in hostage negotiations, it would do so without compunction, much to our disgrace.

It is impossible, however, to build a backbone artificially through legislation. Rather, this requires consistent policy and rational decision making.

Those who—like me—strongly opposed mass releases as part of prisoner swaps and peace talks must see the proposed legislation as having no sound basis. Imprisonment without any possibility of release—even if only theoretical—is an extremely cruel punishment. This type of punishment may also have serious implications for the way that the prisoner behaves in prison, since he or she has very little to lose.  The whole idea of a reducing a sentence, which is only considered in Israel many years after the prisoner has begun serving time, is related to the prisoner's circumstances later on, and takes into account factors such as the prisoner's behavior and rehabilitation in jail, or perhaps the fact that the prisoner is old and sick and does not pose a danger. At the time of sentencing, can a judge possibly know what the prisoner's circumstances are going to be in 30, 40, or 50 years?  Once that amount of time has elapsed, the prisoner is actually, to a great extent, a different person than the person who was sentenced many years earlier. Even if district court judges might impose such a sentence, it is reasonable to assume that the Supreme Court would not allow it to stand on appeal.

Another issue that is puzzling is that the proposed legislation completely contradicts two government bills that were approved by the current government. Firstly, the government adopted the recommendations of a committee that was appointed by the Justice Ministry to evaluate Israel's Homicide Law, and those recommendations were included in a government bill. Although this committee evaluated the crime of murder and the punishment of murder among other crimes, its recommendations did not include life imprisonment until death for even the most heinous of murders. Secondly, the government-sponsored anti-terror law, which purports to be a comprehensive "tool box" that enables Israel to combat terrorism, increased the severity of various punishments for acts of terrorism but did not increase the severity of punishment for terror-related murder.

The government would be well advised to abandon its promotion of this legislation which ostensibly is a show of muscle, but is in fact a miserable demonstration of weakness that has led to an absurd, damaging bill that cannot be implemented.  

Attorney Amir Fuchs is a researcher at the Israel Democracy Institute and served as a member of the commission for amending the Israeli Homicide Law that was appointed by the Minister of Justice.

This article was published in Hebrew in Haaretz on June 22, 2014 and in English in The Times of Israel on June 24, 2014.