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Will the public defender improve prisoner rights in Israel?

CM 31/07/2021

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Yoav Sapir does not remember the exact year, but it had to be sometime between 2012 and 2017. Sapir, who recently stepped down as the country’s chief of the Public Defender’s Office (PDO), having run the office since 2012, received a call about an amazing comment Esther Hayut had just made to one of the lawyers working for him and his office.
Hayut – already on the Supreme Court, but not yet chief justice as she is today – was hearing a case. The attorney for the state at that hearing had been incredulous that the PDO – technically an office in the same Justice Ministry the Attorney-General’s Office inhabits – was taking an opposite view from Justice Hayut on a public policy issue. Hayut chastised the prosecutor for demanding the PDO “toe the party line,” saying, “that is all of the beauty” of the PDO – that it can offer an independent and critical perspective.
Sapir recalled to the Magazine a long stretch of history where the idea that the PDO could offer comments before the Supreme Court on public policy issues seemed unattainable, but by the time of Hayut’s comment, it had become standard procedure.
For Sapir, this story showed how far the PDO has come from being an afterthought to getting equal and serious treatment from the highest ranks of the judicial branch.

Yet, speaking at the Public Defender Conference on June 22, new Justice Minister Gideon Sa’ar appeared on the warpath to help the public defender achieve new wins in protecting suspects’ and prisoners’ rights.
What was Sa’ar so up in arms about?
Ayelet Shaked-era reforms
Throughout her 2015-2019 tenure, former justice minister Ayelet Shaked said she would revolutionize the arena of suspects’ rights.
Sapir gave Shaked credit for establishing the Danziger Commission, named for its chairman, former Supreme Court justice Yoram Danziger. He noted to the Magazine that the Danziger Commission has issued two interim reports as part of a rolling series of four total reports it is expected to issue.
The first report deals with avoiding false or mistaken convictions, as well as how to best locate and undo false convictions after the fact. For example, the report addresses errors made during the process in which a victim or witness identifies the criminal offender, which Sapir calls “one of the worst causes of false convictions.”
The second report takes on the impact of aspects of forensic science in convictions, which Sapir said is often “junk science with mistakes.”
The third round of the report, when it comes out, will deal with other controversial tactics the police sometimes use to help obtain a conviction. These could include inserting undercover agents into prison cells with suspects to fool the suspects into confessing to cellmates they think are fellow suspects. Sapir said that the Innocence Project in the US has a whole database of examples of false convictions from these and other tactics. This, despite that the police’s initial purpose may be to get the truth out of persons who are actually guilty, but are lying about being innocent.
The fourth report, when it comes out, is supposed to go into greater detail about how to locate errors in cases that were already decided and how to streamline the process for seeking retrials. Sapir noted that England has an outside oversight body which checks the prosecution’s forensics arm to make sure it maintains certain standards. Moreover, he asserted there was no reason defense lawyers should not easily receive transcripts of the forensics laboratory process, something that does not occur now.
Sapir said, “The Israeli legal approach can be improved to recognize mistakes and fix horrible injustices that lead it to put innocent people in jail.” He notes that there have already been a small number of cases where defense lawyers have achieved some new positive results for their clients as a result of the two interim reports already issued by the Danziger Commission.
Blocked reforms
But many reforms Shaked and Sapir had hoped to make never happened. For example, a law that was supposed to better protect the rights of suspects while they are interrogated was sidelined because of the last two years of elections. Furthermore, Sapir said that the amount for certain criminal fines was too high and length of penal time too long, and addressing this issue had been held up by the country’s political stalemate.
Another issue Sapir mentioned was that the Dorner Commission, named for former Supreme Court justice Dalia Dorner, had recommended releasing more prisoners early, with conditions but also with greater rehabilitation and finding work support. This never happened.
Corona backsliding
All of this was even before the whipsaw effect of the coronavirus, which pushed back the progress of the PDO’s human rights campaign. Following the COVID-19 outbreak and subsequent spread during 2020, a report from last month by PDO said that, “a string of decisions has been made that hurt prisoners’ legal rights on a critical scale.”
The report stated, “The most egregious thing about these decisions is that they were kept in place even at times in which the infection rate in the general population was down.” 
Regarding lawyers’ visits during the corona era, “The detention and arrest centers were completely inhibited from March to May 2020, with only a few severe exceptions, which severely damaged inmate’s constitutional rights to fair proceedings and ability to appeal to higher courts. The physical presence of detainees and inmates in their legal hearings was denied,” and they were allowed only “to participate in some hearings via technological alternatives, which caused severe damage to their basic legal rights.”
Getting more specific, the Public Defender said that in nine detention facilities there were “noticeable flaws regarding appearances of plaintiffs… not being allowed to physically attend their hearings.”
“The prisoners were the first to have their lives encumbered by heavy restrictions. The acting head of the prisons at the time ended meetings between prisoners and lawyers even before the government announced the first nationwide lockdown,” said Sapir. 
Sapir understood the need for some changes, but opposed the extent of the restrictions, saying “they could have allowed meetings, but with a separation in between and with masks.” 
Moreover, he said that the Health Ministry often did not even support how strict the Israel Prison Service (IPS) was with prisoners. There were instances where the PDO convinced courts on appeal to allow in-person hearings or to force lower courts not to postpone. 
Part of the issue, he said, was that the IPS liked the coronavirus setup of fewer in-person hearings. Having nothing to do with actual health issues, this was simpler logistically than the IPS having to organize transportation and security to move prisoners to and from the prisons to the courts. However, being physically present makes it easier for the prisoner to give his own factual additions or critiques to the court and to his lawyer, and allows the judge to make a more informed review of who he is and how he is doing.
In practice, many Zoom hearings were fiascos where the prisoner could not see, hear or be heard properly.
“If a prisoner wants to be there [in court] and his fate is being decided, we must let him be there – for substantive and procedural justice,” he stressed.
He said that often the IPS dragged its feet for weeks about lifting certain corona restrictions even after the general population had long returned to more lenient and normal standards of living. It was not until May 26 that in-person court hearings were completely restored for prisoners.
Other rights, like rehabilitation programs, were also frozen for much longer than when restrictions were lifted on the general population. This despite the fact that the government already started rolling back the third national lockdown in early February.
Several more rounds of relaxing restrictions occurred over the ensuing months. By April 18, outdoor mask restrictions were lifted and all of the country’s unvaccinated schoolchildren were back in schools operating largely normally. Depending on how you count, the prisoners’ easing of restrictions was between 30-90 days behind the rest of the country.
One area where progress froze in recent years or went backward during the corona era was attempts to emphasize an approach of rehabilitating certain prisoners instead of the approach focusing on punishment. From visits by PDO representatives, the June report said, “Despite efforts to expand the rehabilitation programs offered to prisoners in 2019-2020, many inmates in detention facilities do not enjoy access to such programs.”
Citing visits to five detention facilities, the PDO said it found “shortcomings regarding the quality of the social care provided, lack of manpower and rehab programs for prisoners.”
SUSPECTS AT a June court hearing in Tel Aviv. The Danziger Commission addresses reforms to their rights. (photographer: ILLUSTRATIVE; MIRIAM ALSTER/FLASH90)SUSPECTS AT a June court hearing in Tel Aviv. The Danziger Commission addresses reforms to their rights. (photographer: ILLUSTRATIVE; MIRIAM ALSTER/FLASH90)
In four detention facilities the PDO stated there were policies in place “preventing rehab, education and even social care for security inmates. In visits to wings holding national security prisoners,” there was merely “a small social operation designed to provide help in cases of emergency or mental crisis.”
An additional five detention centers have shortcomings regarding education and rehab for non-Hebrew speaking inmates.
Visits showed the existing work programs available to prisoners are limited and that “only a small portion of the inmate body is participating in a work program. In addition, most of the existing programs… do not offer the inmates tools for rejoining the workforce in the future.”
According to the PDO, the failure of many existing prison policies that insufficiently invest in rehab means they are violating standards set by a law passed nine years ago.
Violating minors’ rights during interrogation
Special rights were given to minors “to ensure a fair trial and limit the significant harm to minors that can happen during an investigation.”
According to a September 2020 PDO report, many minors were interrogated at night in violation of the requirement they only be interrogated during the day. Often, they were interrogated outside the presence of their parents and by those who did not have the requisite training to question minors – despite legal protections that parents be present.
“In some instances, the courts accepted the arguments of the defendants’ lawyers that the severe harm to the minors’ rights should” lead to withdrawing the indictment or an immediate release from police custody.
In one case, the Tel Aviv District Court overturned a conviction for theft of two minors by a lower court while roundly rebuking the police’s violation of the minors’ rights.
“There is almost not a single component of their rights that was not violated either fully or partially during the investigation. The appellants were not fully informed about their rights to advise with the PDO, which had a substantial impact on their case,” wrote the court. “We emphasize that the two appellants were very young minors at the time they committed the crime, under the age of 15,” and this fact should have led to the police to be extra cautious with the handling of the investigation – but the opposite was true.
Poor people abused with fines for being poor
The PDO explained in the September 2020 report that society had experienced decades of watching defendants in poor socioeconomic situations receive more stringent and longer punishments than more well-off defendants. Essentially, the report said that courts’ standard scheme of fines was far beyond what is appropriate for weaker economic sectors of society.
According to the report, 80% of fines which are converted to jail time in lieu of payment come from fines of a mere NIS 5,000. This showed that even a NIS 5,000 fine, if it must be paid in a short period of time, is still far beyond the means of many poor low-grade offenders.
In place of the current Israeli approach to fines, the PDO suggested that the Jewish state adopt a new trend from Europe. Europe’s daily fine is a mix of setting the fine amount as a daily amount spread over a longer period of time as opposed to a large lump sum. The courts also do an evaluation of the convicted person’s economic means to determine what they can afford. Even if Israel does not completely shift gears toward the daily fine model, the PDO demanded that the courts evaluate what each individual convict can afford in order to set fine amounts more realistically.
On a related note, the report said that around 30,000 convicts per year have a provision for placing the convict in jail if he fails to pay an obligatory fine. Around 3,000 convicts per year are actually sent to jail due to an inability to keep up with the designated fine in the sentencing decision. A Supreme Court decision earlier this month took on this issue, but it still has not been addressed by legislation.
Around a quarter of those who must serve jail time due to an inability to pay their fine serve only a few days in prison, but others serve longer periods, and 15% of those in this boat may serve between multiple months to a year. 
“The current structure of fines leads to a mortal harm to the freedom of persons who lack economic means of support,” said the report. One mother of three was about to be thrown into jail due to having failed to pay a NIS 4,000 fine for a traffic violation from 2009. Absent a successful appeal to a higher court by the PDO that struck the prison time and reduced the fine to a more realistic NIS 400, prison for a traffic violation would have wrecked the family.
This is one issue where Sa’ar’s comments at the Public Defender Conference could make a difference. Sapir said he completely agrees with Sa’ar “that criminal cases must deal [only] with grave crimes and not low-grade issues,” like minor theft, especially by a poor person; possession of a small volume of drugs; a small-time physical fight with no real injuries; and running from police for a minor crime.
He emphasized that an elderly person who stole a mere NIS 4 should not have been indicted as they were – “This is a crime?! We need a different approach and not the strong tools of criminal law.”
Regarding that case, he said the police prosecution indicted the poor elderly person, obtained a conviction and sent the person to jail for two years. However, when the PDO appealed to the state (non-police) prosecution, the state dropped the case and released the poor defendant.
Sapir said this is a prime example of how the police prosecution – beyond the injustice to the poor person – wasted resources by filing an indictment that led to four hearings in the magistrate’s and district courts until the appeal was resolved.
He did not say that police prosecutors purposely file unworthy cases to justify the continued budget for their jobs to exist, but he did note they were overly aggressive in filing. In fact, after a new policy was put out allowing prosecutors to close more cases with a small fine and without any possible jail time conversation, 6,000 cases were closed, but the total number of indictments stayed the same.
It seems police prosecutors started to indict others whose cases they might otherwise have closed to cure the “shortfall.” Sapir said that 90% of the prosecutions in the country are by the police prosecution, not the state prosecution, and that most of their cases are low-grade ones that could be dealt with administratively instead of criminally.
He even questioned “why a police prosecution exists in a democratic state. There should be a separation between the branches that probe and that prosecute. This creates major tensions.” He added that previous governments “made the decision to get rid of the police prosecution, but didn’t move forward.”
There are also some uncertainties facing the PDO as it waits to see if Acting Chief Public Defender Hagit Lornau, or someone else, will get the permanent appointment to run the office following Sapir’s stepping down. Meanwhile, Sapir was recently made a full professor at Tel Aviv University Law School.
The answer is probably at least still a few months away.
Hope in Hadera
Sapir switched from the police prosecution seeming dead end to a more hopeful story.
He said that when a new court was in the process of opening in Hadera, his office learned on June 7, 2018 that there was no separate low-profile entrance for minor suspects to enter. Sapir said this could harm minors’ rights as they are entering the courthouse since they are supposed to be kept separate from adult suspects.
His initial 2018 letter demanding a separate entrance for minors was rejected on January 2, 2019 by Haifa District Court president Einas Salameh as too complex and costly.
“Even though it was late to make changes and logistically difficult, we [eventually] got an attentive audience when we turned to the court president, and now there is a proper separate entrance for minors,” said Sapir, explaining that Hayut herself overruled Salameh after he (Sapir) sent her a letter in January 2019.
Sapir was encouraged, he revealed, by the 1,000 lawyers working with the PDO – 900 of whom are mainly private sector lawyers, but contribute some of their time to public defender cases.
At the end of the day, only a mix of goodwill and determination in both the public and private sectors can improve justice on the wide range of issues highlighted by the PDO, but efforts toward progress are underway.

Source: Jerusalem Post

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