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A Research Evaluation of the Israeli New Pretrial Detention Act

Published online by Cambridge University Press:  04 July 2014

Hagit Lernau
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Extract

One of the most influential attempts to describe and comprehend the criminal law system is Packer's celebrated notion regarding the “Two Models of the Criminal Justice System.” Packer regards the criminal justice process as an image constantly shifting between two conflicting models — the “Crime Control Model” and the “Due Process Model” of criminal law. The first model strives to create an effective criminal system that will protect society's right to peace and safety. This aim may be achieved by emphasizing the earlier, informal stages in the law enforcement procedure, namely, police investigation and the decision to prosecute. The second model aims to ensure that the law enforcement process, which is one of the most coercive powers of the state, will be conducted in a lawful manner that will protect suspects and defendants from both intentional wrongdoing and from unintentional mistakes.

Type
Applications of Social Science in the Law
Information
Israel Law Review , Volume 35 , Issue 2-3 , Summer-Autumn 2001 , pp. 266 - 284
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2001

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References

1 Packer, H.A., The Limits of the Criminal Sanction (Stanford, Stanford U. Press, 1968)Google Scholar.

2 The Criminal Procedure Act (Enforcement Powers — Detention), 1996, Principal legislation, no. 1592, May 1996, p. 338 [hereby: The New Detention Act or NDA].

3 Regulations of the Public Defense (Representation of Indigent Detainees), 1998, Subsidiary Legislation, no. 5917, August 1998, p. 1096. The regulations were progressively implemented in different geographical districts. The first districts were Tel-Aviv and the central district. A year later the regulations were applied in the district of Jerusalem and the Southern district.

4 Kassin, S.M. and McNall, K., “Police Interrogation and Confessions” (1991) 15 Law and Human Behavior 233CrossRefGoogle Scholar; McConville, M., Sanders, A., and Leng, R., The Case for the Prosecution: Police Suspects and the Construction of Criminality (London, Routledge, 1991)Google Scholar; Smith, D., “Case Construction and the Goals of Criminal Process” (1997) Brit. J. Criminol. 319CrossRefGoogle Scholar.

5 For a critical view on the condition of detention facilities in different countries see United Nation Center for Human Rights, Human Rights and Pretrial Detention — A Handbook of International Standards Relating to Pretrial Detention (United Nation Publication, 1994)Google Scholar. For the condition of the facilities in Israel and the legal implication see Enbar, Z., “The Physical Conditions of Pretrial Detention as a Consideration in the Decision to Detain” (1998) 4 Mishpat Umimshal 729Google Scholar.

6 On the judicial demands that construct reasonable grounds see Judge J. Casey and Judge B. Knazan, “Reasonable Ground” http://www.acjnet.org/capcj/en/law/publications/casey (1997). For decisions of the U.S. Supreme Court see Terry v. Ohio 392 U.S. 1 (1968); U.S. v. Sokolow 490 U.S.17 (1989); Illinois v. Wardlow (unpublished).

7 County of Riverside v. McLaughlin 500 U.S. 44 (1991); V.W. Chavey, “The Forty-Eight Hour Rule and County of Riverside v. McLaughlin” (1992) 72 Boston Uni. L. R. 403; D.B. Perkins and J.D. Jamieson, “Judicial Probable Cause Determination After County of Riverside v. McLaughlin” (1995) 31 Criminal Law Bulletin 534.

8 Mallory v. U.S. 354 U.S. 449 (1957); Davis v. Mississippi 394 U.S. 721 (1969); Gerstein v. U.S. 420 U.S. 103, 120 (1975).

9 New South Wales Crimes Amendment (Detention After Arrest) Act, 1997, Part 10A.

10 M. McConville, A. Sanders, and R. Leng, supra n. 4, show that about 1% of the suspects are held in detention for more than 24 hours.

11 Annual Report of the State Comptroller #45, (1995) 338 [in Hebrew].

12 Gerber-Sagiv, D., The New Detention Act — Comparative Data (Statistics Department of the Israeli Police, 1998) [in Hebrew]Google Scholar; Gerber-Sagiv, D., The New Detention Act – Comparative Data (Statistics Department of the Israeli Police, 1999) [in Hebrew]Google Scholar.

13 Data from the police statistics department show that as many as 50% of the detainees were held in detention for more than 48 hours and as many as 20% were held in detention for more than 8 days.

14 Libai, D., “Bail and Detention Hearings in the Magistrate's Court” (1972) 3 Tel Aviv University L. R. 516Google Scholar; Porag, A. and Kaplanski, G., “Pretrial Detention Hearings in Magistrate's Court” (1992) 3 Plilim 291Google Scholar.

15 For a review of the legislative stages see Zandberg, H., Criminal Procedure Law (Powers of Arrest and Detention) 1996, (The Harry and Michael Sacher Institute for Legislative Research and Comparative Law, The Hebrew University of Jerusalem, 2001) 147–167 [in Hebrew]Google Scholar.

16 See discussions of the Committee of Constitution, Law and Judgment in Noach, Z., The Law of Pretrial Detention and Bail, Part A (Avi Law Publication, 1999) 83–84 [in Hebrew]Google Scholar. See also the analysis of Justice Barak, in Ganimat v. The State (1995) 49(iv) P.D. 589 that refers directly to the data that were published by the State Comptroller; and see also Dorner, Justice D., “Criteria for Detention Decision” (1998) 23 The Defense Lawyer 3Google Scholar. A different interpretation of the NDA is voiced by Justice Cheshin who understands the NDA, as well as the Basic Laws, to have a more declarative value. For a detailed discussion see H. Zandberg, ibid.

17 For a detailed discussion see H. Zandberg, supra n. 15.

18 Z. Noach, supra n. 16, at 39.

19 Survey on Legal Representation in Criminal Procedure in the Central and Tel-Aviv Districts (Public Defense Office in Israel, 1996).

20 The Public Defense Act, 1995, Principal Legislation no. 1551, p. 8.

21 Marom, D. Marshak, “Model Proposition for the Israeli Public Defense Office” (1994) 4 Plilim 311Google Scholar.

22 Haaroni, M., With No Legal Cause (The Association for Civil Rights in Israel, 2000, in Hebrew)Google Scholar.

23 The Effect of the New Detention Act on the Length of Pretrial Detention, MDA — Research and Evaluation Department (The Courts Management, 2000, in Hebrew).

24 In this chart the drug offenses were excluded from the category of severe crimes because the maximum punishment in such cases are not an accurate reflection of the severity of the crime.

25 The percent adds up to more than 100% because in some cases the suspect is charged with more than one category of offense.

26 Libai, D., The Law of Pretrial Detention and Bail (Tel-Aviv, Schocken Publication, 1978) [in Hebrew]Google Scholar; Z. Noach, supra n. 16.

27 Goldkamp, S.J., “Philadelphia Revisited: An Examination of Bail and Detention Two Decades after Foote” (1980) Crime and Delinquency 179–192Google Scholar; “Pretrial Release of Federal Felony Defendants” Special Report (U.S. Department of Justice, Bureau of Justice Statistics, 1990)Google Scholar.

28 However, beyond 30 days the police's request must be confirmed by the State legal counselor and prolongation of detention beyond 75 days can be confirmed exclusively by the Supreme Court.

29 Under exceptional conditions, the court can prolong detention for more than 5 days at a time (but still only up to the limit of 15 consecutive days).

30 This hypothesis was examined and denied in a multivariate analysis: see Lernau, H., Reforms in Pre-Trial Detention Laws in Israel, Ph.D. thesis (2001)Google Scholar.

31 Hudson, B.A., Understanding Justice (Philadelphia, Open U. P., 1996)Google Scholar; Kingsnorth, R.F., Alvis, L., and Gavia, G., “Specific Deterrence and the DUI Offender” (1993) 10(2) Justice Quarterly 265CrossRefGoogle Scholar; Kaplan, M. and Krupka, S., “Severe Penalties Under the Control of Others Can Reduce Guilt Verdicts” (1986) 10 Law and Psychology R. 1Google Scholar.