1 The informal constraints to be considered here were not entirely independent of formal legal developments: see, e.g., n. 3 below.

2 See on this, Rabello, A. M. and Sebba, L., “Continuity and Discontinuity of Law in Times of Social Revolution”, in Rabello, A.M. (ed.), Israeli Reports to the XIV International Congress of Comparative Law (Jerusalem: Sacher Institute, 1994), 1.Google Scholar

3 For many years the Criminal Code had, by virtue of sec. 4 of the Ordinance, to be “…interpreted in accordance with the principles of legal interpretation obtaining in England and expressions used in it … presumed … to be used with the meaning attaching to them in English law …”. The general sanctioning provisions, however, were rendered autonomous in this respect on being revised in 1953–54 (see below); while the sanctions for certain offences, and the continuing existence of others, were explicitly reconsidered in 1966 in order to differentiate between the policy of the Knesset and its “Anglo-colonial” predecessor (see the Criminal Code Ordinance Amendment Law (no. 28) of 1966, and the Explanatory Note to the Bill, H.H. no. 674 of 1965, 38, 42. Sec. 4 itself was effectively repealed in 1972 by the Law and Administration Ordinance (Amendment No. 14) Law, which declared that statutory provisions requiring that an enactment be interpreted in accordance with English law to be no longer binding; and the formal reliance upon English law to fill “lacunae” in Israeli law in general was terminated by the Foundations of Law, 1980. The historical development of the criminal code, the implications of sec. 4, and the possibilities for cross-fertilization with other former British colonies which inherited similar codes, were considered in Abrams, N., “Interpreting the Criminal Code Ordinance, 1936 — The Untapped Well,” (1972) 7 Is. L.R. 25 CrossRefGoogle Scholar, and Shachar, Y., “The Sources of the Criminal Code Ordinance, 1936,” (1979) 7 Iyunei Mishpat 75.Google Scholar

4 Thus the Criminal Code Ordinance of 1936 remained in force in its English formulation until 1977, and was then in substance reissued in a Hebrew version — although some chapters, including the sanctioning provisions, had meanwhile been reformulated. (This law remains in force today, although further chapters have been revised — including the whole of the General Part.) Other penal enactments dating from the mandatory period which remain in force (reissued in official Hebrew versions and subject to amendments) include the Prisons Ordinance of 1946, and the Probation of Offenders Ordinance of 1944, as well as the Police Ordinance of 1926 and the Dangerous Drugs Ordinance of 1936.

5 Reference is to community service (see below). However in another instance (the introduction of suspended sentences of imprisonment) a reform was adopted in Israel first, and its subsequent adoption in Britain may have been partly influenced by the Israeli experience with this institution. (A favourable analysis of the Israeli experience was submitted to British policymakers by the present author.)

6 The main departures from this system have been the restraints imposed upon the Knesset's sovereign power to legislate as a result of the enactment of Basic Laws; and the recently adopted system for direct election of the Prime Minister.

7 This, too, has changed recently with the adoption of “primaries” by the political parties. The need for individual popularity has resulted in a dramatic rise in the legislative activities of Knesset members, in particular the submission of Private Members' bills — many of which have, in recent years, been successfully pursued. See Lin, U., Report on the Work of the Constitution, Law and Justice Committee in the Twelfth Knesset (Jerusalem, 1992)Google Scholar, and Sebba, L., “Professor Tedeschi and the ‘Jurisprudence of Legislation’—A Voice in the Wilderness”, in Englard, I. et al. (eds.), In Memory of Gad Tedeschi: Essays in Civil Law (Jerusalem: Sacher Institute, 1995), 535 Google Scholar, esp. 545–6.

8 See Sebba, ibid.

9 But see below, n. 39.

10 See sec. 42(1). In the case of the death penalty, however, there was a presumption that this was mandatory (ibid.).

11 See Palestine Gazette, 1933, 639, 650. See also Cohn, H.H., “Legislation and Judicial Process in the Field of Criminal Law,” in Drapkin, I. et al. (eds.), The Prevention of Crime and Treatment of Offenders in Israel (Jerusalem, 1965) 15 Google Scholar, at 17.

12 See secs. 69–71 of the Prisons Ordinance of 1946.

13 See sec. 18 of the Ordinance. The sanctions listed in this section which were not available for adults included: dismissal of the charge, placing in the care of a relative or other fit person, whipping, sending to a reformatory school, making various orders against a parent, and “dealing with the case in any other manner in which it may be legally dealt with”.

14 The terminology appearing in this article (in relation to Knesset — and pre-Knesset — statutes) derives from the official government translations — the Laws of the State of Israel. The General Amnesty Ordinance appears in 2 L.S.I. 115.

15 See ibid., secs. 1 and 2. For an analysis of this law, see Sebba, L., Pardons and Amnesties — Legal and Penological Aspects, Doctoral Dissertation (Jerusalem: Hebrew University, 1975)Google Scholar, ch. 4.

16 See H.H., no. 15, 1949, p. 159. The opening section purported to be more far-reaching: “There will be no death penalty in the state”.

17 See the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954, 8 L.S.I. 63.

18 See Mathiesen, T., The Politics of Abolition (London, 1974)Google Scholar.

19 See Eaton, J.W., Prisons in Israel (Pittsburgh: University of Pittsburgh Press, 1964), 1 Google Scholar; Hermon, Z., “The Institutional Treatment and After-Care of Adult Offenders and Juvenile Delinquents in Israel,” in Drapkin, I. et al. (eds.), The Prevention of Crime and The Treatment of Offenders in Israel, supra n. 11, 122 Google Scholar, at 124.

20 It may be that the anticipation of a tiny prison population was based not so much upon an ideological opposition to prisons, but rather upon the perception that there would be little crime in the new state (cf. Hermon, ibid.).

21 The Penal Law Revision (Modes of Punishment) Bill was published in October 1953, four months before the enactment of the death penalty legislation.

22 See the Penal Law Revision (Modes of Punishment) Bill, 1953, H.H. no. 179, 6, at 9. On sec. 4 of the Code see n. 3 above.

23 See Rubin, S. et al., The Law of Criminal Corrections (St. Paul, Minn., 2nd ed., 1973)Google Scholar, and Hamai, K. et al. (eds.), Probation around the World (London: Routledge, 1995).Google Scholar For discussions of these sanctions in the context of their development in Israel, see Agranat, S., “First Lecture”, in Drapkin, I. (ed.), Penal Reform in Israel (Jerusalem: Institute of Criminology, 1963) 6 Google Scholar, at 16, and Sebba, L., “Penal Policy and Court Practice: The Case of the Suspended Sentence,” in Drapkin, I. (ed.), Scripta Hierosolymitana: Studies in Criminology (Jerusalem: Magnes Press, 1970) 133.Google Scholar

24 “For a felony a fine alone will not be imposed” (sec. 9 of the Bill). Judicial interpretation of such formulations appearing elsewhere in Israeli legislation suggests that the courts might have evaded the mandatory intention (see the Explanatory Note on p. 10 of the Bill) by imposing a fine coupled with a minor sanction, such as a recognisance. See Sebba, L., “Minimum Sentences”, (1971) 6 Is. L.R. 227.CrossRefGoogle Scholar Moreover it was presumably intended that a suspended sentence could be imposed.

25 The last two reforms are discussed below.

26 See H.H. no. 179, 11.

27 It did, however, incorporate one residual provision relating back to the measures for the abolition of the death penalty. The 1949 Bill to abolish the death penalty included a provision specifying that offences punishable by life imprisonment were henceforth to be punishable only by 20 years imprisonment — in order to distinguish them, in terms of severity of sentence, from murder; see sec. 4 of the Bill and the explanatory note. This provision was omitted from the law abolishing capital punishment (enacted in February 1954), but was incorporated in the Modes of Punishment Law (sec. 2) enacted in September of the same year. (Interestingly, sec. 1 of the Modes of Punishment Bill — published in October of 1953 — laid down a different policy, namely, that where life sentences were specified, the court could impose a determinate sentence.)

28 Cf. below, for a comparison with the early history of the United States in this respect.

29 See the minimum penalties introduced for assaults on police officers under the Penal Law Revision (Assault on Police Officers) Law, 1952 (now secs. 273–6 of the Penal Law, 1977). See also the proposal for mandatory imprisonment for felonies under the Penal Law Revision (Modes of Punishment) Bill (see above, n. 24 and accompanying text). Moreover the overriding purpose of the suspended sentence was individual deterrence.

30 For a sympathetic account of these developments, see Grunhut, M., Penal Reform (Montclair, N.Y.: Patterson Smith, 1972).Google Scholar For a critical view, see Cohen, S., Visions of Social Control (Cambridge: Polity Press, 1985)Google Scholar.

31 See, e.g., an account of Israel's prison regime by the Scientific Adviser (and former Commissioner) of the prisons, Dr. Zvi Hermon: “…the philosophy underlying prison work aims at discovering in each individual prisoner his positive potentials and developing them as far as this is possible in the setting of a prison toward his rehabilitation. In order to facilitate the translation of this philosophy and its aims into a practical reality, the correctional institutions are based, in an ever-growing degree, on the classification of the prisoners according to their background, antecedents, and personalities.” (Z. Hermon, “The Institutional Treatment and After-Care of Adult Offenders and Juvenile Delinquents in Israel”, supra n. 19, at 123–4. A recent paper has traced the dominance of the pathological approach to delinquency to the pre-state era: see Ajzenstadt, M., Social Control and the Welfare State: Discipline and Regulations in Israel, 1930–1970 (Jerusalem, 1996)Google Scholar.

32 See Rothman, D., The Discovery of the Asylum (Boston: Little Brown, 1971)Google Scholar.

33 Although they were clearly to be part of the rehabilitative complex: see n. 31.

34 According to sec. 19(a) a pre-sentence report was to include: “(1) the past history of the accused; (2) particulars of the family of the accused, with details as complete as possible regarding his parents, spouse, children, brothers and sisters; (3) the economic situation of the accused; (4) the state of health of the accused and of the members of his family; (5) special personal circumstances, if any, which drove him to crime.” The adoption of this provision was influenced by the report submitted to the Ministry of Justice by Edmond Fitzgerald, Chief Probation Officer of Ring's County, Brooklyn; see E. Fitzgerald, Report on a Six Weeks Study of Correctional Procedures in the State of Israel, and Halevi, B., “Second Lecture”, in Drapkin, I. (ed.), Penal Reform in Israel, supra n. 23 Google Scholar, at 18, 24. The principle that dispositions for juvenile offenders should be based upon pre-sentence investigations had already been recognised in the Juvenile Offenders Ordinance of 1937 and the Probation of Offenders Ordinance of 1944. The principle that an an adult offender should not be placed on probation without such a report was recognised by an amendment to the latter Ordinance in 1953. See Halevi, ibid., at 24.

35 Sec. 19(b) of the Law.

36 See Penal Law Amendment (Modes of Punishment) (Amendment No. 2) Law, 1961.

37 See the Declaration in the Matter of Sec. 19(b) of 1964. Other limitations (i.e., exemptions from the obligation to receive a pre-sentence report prior to the imposition of imprisonment) applied to certain types of offence, and to offenders serving a prison sentence for another offence. This provision is still in force today. For an account of these developments, see Sharon, A., The System of Probation in Criminal Law (Haifa, 1987) 88–9Google Scholar.

38 Doubts regarding the legality of the partially suspended term of imprisonment were resolved by the amending legislation in 1963 referred to below.

39 This alternative was not specified in the 1954 law, but only under the Probation of Offenders Ordinance. Probation was not regarded as a “mode of punishment” but as a form of treatment, and had therefore been removed from the list of “Punishments” appearing in sec. 37 of the Criminal Code Ordinance, prior to the enactment of the 1954 revision. On this approach see also A.G. v. Weigel (1963) 17 P.D. 712, and the Further Hearing at 17 P.D. 2358.

40 This provision now appears as section 89 of the Penal Law, 1977.

41 The official translation refers to this committee as a Parole Board; see also H. Cohn, supra n. 11. However this terminology is not always used, in view of the absence of parole supervision in the Israeli system.

42 See sec. 38 of the Law (now sec. 50 of the Penal Law, 1977). Moreover, if the board did not include a medical practitioner (but rather an educator), it was obliged to obtain a medical opinion before reaching its decision: see sec. 39(c) of the 1954 Law (now sec. 51(a)).

43 As to current perceptions in this matter, see below.

44 See explanatory note to the Penal Law Revision (Modes of Punishment) Bill, 5714–1953, H.H. no. 179, p. 9.

45 Again, some punitive provisions were included, such as the provison (sec. 2 of the bill, adding sec. 11A to the 1954 Law) for fines five times the value of the harm intended to be inflicted — or of the benefit intended to be derived from the commission of the offence. In the final formulation of the law this was modified to three times the value, but was subsequently raised to four times the value: see sec. 63 of the Penal Law, 1977. Other provisions were of a more technical nature.

46 This provision became sec. 18D of the 1954 Law, and remains in force as sec. 56 of the Penal Law of 1977.

47 This provision became sec. 18A of the 1954 Law, and remains in force as sec. 53 of the Penal Law of 1977.

48 See the comment of M. Horovitz, the then Deputy Chief Probation Officer, on the lecture by Justice Halevi, who had been advocating the combined sanction. Horovitz argued that the two sanctions were appropriate for different types of offender. See Drapkin, I. (ed.), Penal Reform in Israel, supra n. 23, at 26.Google Scholar It may be observed that the possibility of a combined sanction was included in the original Bill introducing the suspended sentence in 1953: See sec. 16 of the Penal Law Revision (Modes of Punishment) Bill, 1953.

49 See 17 L.S.I. 96, 98–9. This provision became sec. 17A of the 1954 Law, which subsequently became sec. 82 of the Penal Law of 1977. This, provision was replaced in 1989 (see below).

50 Reference here is to the role of the physician in the release committee (parole board): see above, n. 42 and accompanying text.

51 See, generally, Conrad, and Schneider, , Deviance and Medicalization (St. Louis: Mosby, 1980)Google Scholar.

52 The definition of insanity which appeared in the Criminal Code Ordinance of 1936 (sec. 14) was relatively narrow and conservative, reflecting the cognitive criteria laid down in the English McNaughten Rules. (This definition may be contrasted with the broader and more flexible Durham or “product” rule adopted by the U.S. federal court system one year before the reform being considered here: see, e.g., N.N. Kittrie, The Right to be Different (Baltimore: Penguin, 1971) 42–43. The legislation of 1955 did not directly affect this definition — but in the same year the Supreme Court in the Mizan case (Mizab v. A.G. (1957) 11 P.D. 769) adopted a minority opinion of Agranat J. in the Mandelbrot case of 1953 (A.G. v. Mandelbrot (1956) 10 P.D. 281.) which gave judicial recognition to the “irresistible impulse” defence. (See Bazak, J., “Irresistible Impulse, Diminished Responsibility and Psychiatric Evidence in Israeli Law”, in Drapkin, I. (ed.), The Prevention of Crime and Treatment of Offenders in Israel, supra n. 11, at 35.Google Scholar This defence, like the Durham rule, is deterministic in spirit.

53 See secs. 6 and 17 of the 1955 Law. The Board comprised two physicians and a jurist: see sec. 12 of the Law. (A similar provision appears in sec. 24 of the present law, enacted in 1991; see below.)

54 See Aviram, U. and Shnit, D., Psychiatric Treatment and Civil Liberties (Tel-Aviv: Zmora, Bitan, Modan, 1981)Google Scholar; Yarmilovitch et al. v. Hovav, (1981) 35(iii) P.D. 766; Kanter, A. and Aviram, U., ‘Israel's Involuntary Outpatient Commitment Law: Lessons from the American Experience”, (1995) 29 Is. L.R. 565 CrossRefGoogle Scholar, at 568–70. Interestingly, the Explanatory Note to the bill (H.H. no. 230, 1955, pp. 90,94) declared that the new law “would ensure that the mentally ill would not be deprived of their liberty or other basic rights, unless there was a real need, whether for the purpose of their treatment or for the protection of the public, and by way of procedures determined by law”. This favourable view of the new law may be explained not only in terms of the different concepts of rights — and the lack of awareness of civil liberties — held at that time, but also in the light of the situation of legal anomie which prevailed in this area prior to the adoption of the new Law; for the law applicable previously was an Ottoman law which had not been translated into Hebrew or English and the contents of which were generally unknown! See Explanatory Note to the bill, ibid.

55 See above, n. 49, and accompanying text. The provisions referred to were applicable to any offence punishable by at least six months imprisonment, provided that such a sentence were actually imposed in the instant case, if the court formed the opinion that it was drug related. The most common instances would be the commission of property offences so that drugs could be purchased with the proceeds.

56 See sec. 17A(f) of the Law. This expression subsequently appeared in sec. 83(b) of the Penal Law, 1977 (later repealed and replaced by new provisions: see below). The official translation has “the patient”.

57 One of the weaknesses of these provisions was that the imposition of a prison sentence was a pre-condition to a treatment order—which could be either concurrent or consecutive. This raised the question of whether a presumed addict should be sent to prison before being cured of his or her habit — or after, when further exposure to drugs in the prison environment would be assured. A second problem here was the interaction (or failure of interaction) between the special Board established to authorize the release of the offender from the institution — and possibly back to prison depending, if the institutional order was to be concurrent with the prison term, whether the prison term had terminated — and the prison release committee (or Parole Board) which determined the ultimate release date from prison. See Sebba, L. and Ehrenfeld, R., Rehabilitation as Punishment (Jerusalem: Sacher Institute, 1988)Google Scholar; Ehrenfeld, R. and Sebba, L., “Involuntary Treatment of Drug Addicts in Israel”, in McGlothlin, W.H. and Angiin, M.D. (eds.), The Compulsory Treatment of Opiate Dependence (Binghampton: Haworth Press, 1991).Google Scholar

58 See Sebba and Ehrenfeld (ibid.).

59 In addition to the psychiatric opinion upon which the court based its decision, the statutory Board established to decide upon release from the institution had also to include at least one psychiatrist (sec. 17A(e) of the Law).

60 See H.H. 1962, no. 522, p. 246 at 251, and sec. 17A(b) of the 1954 Law as amended. However this section also provided that a psychiatric ward in a prison could be designated a suitable institution for this purpose.

61 See Sebba and Ehrenfeld, supra n. 57.

62 See Kittrie, supra n. 52.

63 The paternalism of the 1955 Law is reflected more strongly in the provisions for involuntary commitment of mentally sick persons who did not commit criminal acts, such as those constituting a danger to themselves. The precise scope of the powers available under the law for the involuntary commitment of mentally ill persons on grounds other than dangerousness were controversial: see Aviram and Shnit, supra n. 54, at ch. 2.

64 See sec. 2(5) and (6) of the Youth (Care and Supervision) Law, 1960, 14 L.S.I. 44. The greater emphasis on welfarism in the new law was also reflected in the transfer of the power to act from probation officers to welfare officers (see below), and in the additional powers of intervention granted to such officers, including interim and emergency powers (see secs. 11 and 12 of the Law).

65 In most respects, however, the provisions governing this category of juveniles under the Ordinance were also civil, and did not entail criminal records or the infliction of criminal sanctions.

66 Sec. 2(3) of the Law, supra n. 64.

67 The question of whether civil or welfare proceedings are less oppressive or otherwise preferable for children as compared with penal or quasi-penal proceedings has of course been a subject of much debate in recent times; see Morris, A. and Giller, H., Understanding Juvenile Justice (London: Croom Helm, 1987)Google Scholar; Sebba, L., “Juvenile Justice: Mapping the Criteria”, in Freeman, M.D.A. and Veerman, P. (eds.), The Ideologies of Children's Rights (Dordrecht: Nijhoff, 1992) 237.Google Scholar

68 Cf. the other definitions of a “minor in need” under sec. 2 of the Youth (Care and Supervision) Law, 1960. Only one other category is defined in terms of the minor's (delinquent) conduct, namely, where the minor “has been found vagrant or begging or hawking in contravention of the Youth Labour Law, 5713–1953” (sec. 2(4) of the Law.)

69 See Sebba, L., “Youth (Trial, Punishment and Treatment) Bill, 1969,” (1970) 2 Mishpatim 388 Google Scholar; Sebba, L., “Legalism versus Welfarism in Israel's Juvenile Justice System”, (1981) 16 Is. L.R. 461 CrossRefGoogle Scholar; Sharon, E., Youth in Criminal [Procedure]: Trial, Treatment and Punishment (Haifa, 1990).Google Scholar

70 Thus, for example, the court was (and is) empowered to place an accused minor (i.e., before a finding of guilt) under the temporary supervision of a probation officer (or even send the minor to a home for the purposes of observation) ifit is of the opinion that “the interest of the minor so requires” (sec. 20 of the Law; see 25 L.S.I. 128). See also secs. 11, 12, and 22 of the Law.

71 See secs. 24 and 26 of the Law.

72 See secs. 30, 31, 33, and 36 of the Law. On the issue of subsequent modifications of the court's disposition, see below.

73 Even the court's power to appoint an advocate — on the face of it an example of a legalistic or rights orientation — is to be exercised under the law in accordance with the court's view of the minor's best interests: see sec. 18 of the Law.

74 For an analysis of labelling theory and its policy implications, see Empey, L.T., American Delinquency: Its Meaning and Construction (Homewood, Ill.: Dorsey, 1978)Google Scholar, ch. 13.

75 This option is also available to Israeli courts when trying an adult, where the court is contemplating a probation or community service order (as to which, see below). However, in the case of the juvenile court, most of the sanctioning options are conditional on an absence of conviction — and in practice only a minority of juvenile offenders are formally convicted. In legal terms, however, the significance of the conviction declined with the enactment of the Crime Register and Rehabilitation of Offenders Law (see below), according to which the disclosure of information relating to an offender's criminal record depends upon the nature and severity of the penalty imposed rather than upon the fact of conviction.

76 Data on this phenomenon may be found in the annual reports issued by the Probation Service. In recent years more than one half of the cases of delinquency reported to the police are dealt with outside the court, whether by refraining from opening a file, or by closing the file without prosecution. See, e.g., Ministry of Labour and Welfare, Minors Dealt with by the Juvenile Probation Service 1995, (Jerusalem, 1996) pp. ii Google Scholar, xxxii.

77 See H.H. 1978, no. 1334, p. 147.

77a Juvenile delinquency among the oriental communities is traditionally associated by criminologists with the “cultural conflict” which was experienced during the wave of post-independence immigration, giving rise to the establishment of the Agranat Committee in the 1950s. Ajzenstadt, supra n. 31, shows, however, that “wayward” children from among these communities were already the focus of social control measures during the pre-state period.

78 See ibid.

79 Penal Law (Amendment No. 3), 1978, sec. 2, amending sec. 3 of the 1960 Law. This provision did not appear in the Bill.

80 See the Welfare (Treatment of Retarded Persons) Law, 1969 (23 L.S.I. 144). The nature of the “mode of treatment” to be determined by the evaluation board was left open (see sec. 7), but this expression was defined in sec. 1 of the Law to “include the maintenance of a retarded person in a home or his reporting to a day home”. For an overview of the generally paternalistic approach to this topic under the Israeli legal system see: Herr, S.S., “Human Rights and Mental Disability: Perspectives in Israel”, (1992) 26 Is. L.R. 142.CrossRefGoogle Scholar

81 Sec. 19C of the Law; see the Welfare (Treatment of Retarded Persons) (Amendment No. 2) Law, 1975, 29 L.S.I. 93, 94. In the event that the accused has been found to be unfit to stand trial, or not responsible for the act committed, referral to this committee is mandatory.

82 Sec. 19D of the Law; see ibid.

83 Cf. the case of Roth v. State of Israel, (1977) 31(ii) P.D. 757, where the court held, in the case of a person suspected of being mentally ill, that an involuntary diagnostic procedure would not be justified where the offence was of a minor character and the ultimate imposition of a prison sentence unlikely.

84 Another legislative bill in the area of juvenile justice with a strongly welfarist orientation, designed to amend the Youth (Trial, Punishment and Modes of Treatment) Law of 1971, was submitted to the Knesset by the government in 1979. This law would, inter alia, have vested wide powers in the authorities to modify the court's disposition, e.g., by transfering a minor from a closed home to prison and vice versa, and to impose a conviction ex post facto. (The original law, which remains in force today, also includes provisions of this nature, but these are narrower in scope.) For an analysis of the provisions of the proposed bill see Sebba, L., “Youth (Trial, Punishment and Modes of Treatment) Bill (Amendment No. 2) 1979”, (1981) 11 Mishpatim 322.Google Scholar Not only did this bill fail to pass its first reading at the first attempt; it has not been adopted to this day, in spite of continuing attempts to revise and reintroduce it.

85 See H.H. 1981, no. 1514, pp. 219–7.

86 An institution of this nature was apparently provided for under a law inherited by Israel from the Ottoman period, but had fallen into desuetude; see Feller, S.Z., “Rehabilitation — A Special Legal Institution which is Necessary”, (1968/ 1969) 1 Mishpatim 497.Google Scholar

87 The bill published in 1980 was formulated on the basis of two distinct earlier bills: the Criminal Registration Bill of 1975 and the Rehabilitation Bill of 1979. The latter would have provided for a one-time expungement (limitation) of records. The new law, however, adopted this concept as a permanent institution.

88 Sec. 16 of the Law. However certain bodies, such as the Judicial Appointments Committee would still have access to these records.

89 Sec. 18 of the Law. Prior to the enactment of this law erasure of a criminal record fell within the exclusive purview of the President's pardoning power.

90 See Elman, P. (ed.), Policy Consultation on the Rehabilitation of Prisoners (Parole and After-Care) (Jerusalem, 1973).Google Scholar As noted above, the release committee established under the Penal Law (Modes of Punishment) Law, 1954, was referred to in the official translation as a parole board, but it has no supervision component on a systematic or normative basis (although such a requirement may on occasion be incorporated in the release conditions specified by the committee).

91 See the sources cited in a. 23 above.

92 See, e.g., Council of Europe, Alternative Penal Measures to Imprisonment (Strasbourg, 1976)Google Scholar; HEUNI Institute, Alternatives to Custodial Sanctions (Helsinki, 1988)Google Scholar; and, in the Israeli context, Talgam, M. et al. (eds.), “Alternatives to Imprisonment: Correctional Services”, Iyunim B'Kriminologia no. 3 (Tel-Aviv, 1988).Google Scholar

93 The Committee on Penal Methods and the Treatment of the Offender was established by the Ministers of Justice and the Interior in 1967. Its recommendations were referred to from time to time in governmental proposals for penal reform, such as the bill which introduced “service work”; see below, n. 111 and accompanying text.

94 See Ancel, M., Social Defence (London: Routledge and Kegan Paul, 1965), at 118.Google Scholar

95 See the views of S. Kwart (Deputy State Attorney) and Halevi, B. (Supreme Court Justice) in Penal Reform in Israel, supra n. 23, at 13 Google Scholar, 19.

96 See Criminal Code Amendment Bill (no. 29), 1965, H.H. no. 674, pp. 38, 42. However, while the Explanatory Note declared that “the minimum term of imprisonment under the Code will be three months” the intention was merely to raise the maximum penalties for offences which had maxima of one week, one month, etc. Thus judicial discretion to impose shorter terms would have been retained.

97 See S. Cohen, supra n. 30, at 30ff.

98 See Central Bureau of Statistics, Criminal Statistics 1970 (Jerusalem, 1973)Google Scholar, Table 50; Israel Prison Service, Annual Report 1991. (By this year the prison population had risen to over 10,000.)

99 Subsequently an innovative alternative, “service work”, was introduced. This, however, being a relatively recent enactment, will be dealt with in the next section.

100 H.H. no. 179, supra n. 26, at 10.

101 Cf. Austin, J. and Krisberg, B., “Wider, Stronger and Different Nets: The Dialectics of Criminal Justice Reform”, (1981) 18 J. of Research in Crime and Delinquency 165.CrossRefGoogle Scholar

102 See L. Sebba, “Penal Reform and Court Practice: The Case of the Suspended Sentence”, supra n. 23. The English experience was different in this respect: see Cavadino, M. and Dignan, J., The Penal System (London: Sage, 1992) 180.Google Scholar

103 See Halevi, supra n. 34, at 23.

104 See Young, W., Community Service Orders (London: Heinemann 1979)Google Scholar; Hovav, M., “Alternatives to Imprisonment in Israel”, in Tzubery, Y. (ed.), The Prevention of Crime and the Treatment of Offenders in Israel (Jerusalem: Ministry of Police, 1990) 98 Google Scholar, at 99, 101.

105 See H.H. 1978, no. 1357, p. 284.

106 See, e.g., Duffee, D., Community Corrections. A Community Field Approach (Cincinatti, 1990).Google Scholar

107 See Nelken, D., “Community Involvement in Crime Control”, (1985) 38 Current Legal Problems 239–267 CrossRefGoogle Scholar, in which three different uses of the term community in this context are considered.

108 See the example of “service work” considered below, n. 111.

109 See sec. 51B of the Penal Law, 1977, as amended. The role of the prison officer is defined in sec. 51K. The types of activity available for this purpose are determined by the Director of the Employment Exchange (sec. 51A).

110 The last two characteristics, benefit to the community and absence of pay, are specified in relation to service work described as “public work”; see secs. 51A and 51E of the Law. However, the law also provides a second form of service work entitled “work for the economy”. In this case the type of work is determined by the Director of the Employment Exchange in accordance with “the needs of the economy”, and the offender will be paid the going rate (subject to deductions); see secs. 51A and 51D of the Law. These provisions, however, are almost never invoked by the courts.

111 See, e.g., Hovav, supra n. 81. The diverse objectives which were attributed to this reform during the course of its adoption (and, since that time, by the courts) are discussed in Landau, S.F., Sebba, L., Sagiv, B., and Nirel, R., Punishment by “Service Work” — An Evaluation Study (Jerusalem: Ministry of Police, 1994)Google Scholar ch. 2.

112 ibid. See also R. Nirel, S.F. Landau, L. Sebba and B. Sagiv, “The Effectiveness of Service Work: The Analysis of Recidivism”, J. of Quantitative Criminology (forthcoming).

113 See the Explanatory Note to the bill incorporating the revised provisions (H.H. 1988, no. 1893, p. 249), which cited the recommendations of a governmental committee on drug policy (the “Mann Committee”). This committee was apparently influenced by the findings of the study referred to in n. 57 above.

114 See the revised sections 82–84 of the Penal Law, 1977, as adopted by the Dangerous Drugs Ordinance (Amendment no 3), 1989. The above citation is from sec. 82. Sec. 83(3) requires that the probation officer's pre-sentence report incorporate a detailed treatment plan regarding the nature of the treatment and its duration. In the bill the new order was called a “treatment order”.

115 See H.H., supra n. 113, at 249–250.

116 See below.

117 Persons qualified in related disciplines, such as psychology and education, have sometimes been appointed.

118 However the Minister of Health — together with the Minister of Justice and the Minister of Police (now Internal Security) must be consulted by the Minister of Labour and Welfare before the latter issues regulations.

119 See Penal Law (Amendment no. 49), 1996. (Since the treatment is in the framework of a probation order, the court may make the order while refraining from registering a conviction.) This amendment is complemented by a contemporaneous amendment to the Law for the Prevention of Violence in the Family of 1991 which specifies that a court may require a person who is the object of a (civil) protection order to undertake treatment: see Amendment no. 2 to this law, of 1996.

120 The prefix meaning “for the” before the word “treatment” has been omitted.

120a See, generally, Kanter and Aviram, supra n. 54.

121 Even the issue of terror, and how to combat it, is generally alluded to in terms of military solutions rather than criminal justice solutions. The functioning of the military justice system has attracted criticism on the part of human rights activists (see below), but never entered the mainstream political agenda (i.e., of the two major parties). Calls for the death penalty are relatively infrequent—perhaps because they have consistently been opposed by the military authorities.

122 The low profile of criminal justice issues is generally attributed to the dominance of regional and security issues. Ajzenstadt, supra n. 31, however, has in a recent paper provided an alternative historical analysis, showing how in the early (and pre-state) years crime and deviance were merely a sub-issue in the general discourse of “nation-building”.

123 See above.

124 See the Dangerous Drugs Ordinance (New Version) Amendment Law, 1989. The maximum penalty for possession or use of small quantities, however, was reduced in 1971 to only three years imprisonment: see the Dangerous Drugs Ordinance (Amendment No. 3) Law, 1971, amending sec. 16 (now in sec. 7 of the New Version of 1973).

125 For most offences for which life imprisonment was laid down in the Criminal Code Ordinance of 1936, the maximum penalty is now 20 years imprisonment (see supra n. 27).

126 See sec. 25 of the Ordinance. Other offences for which minimum penalties are laid down include assaults on police officers, procuring for prostitution, and hit-and-run driving. (As to new proposals for minimum penalties for sex offences and domestic violence, see below.) However, a provision adopted together with the recent revision of the General Part of the penal code specifies that where mandatory penalties are provided, the court may depart from such penalties if there are special mitigating circumstances, to be specified in the sentence. (See sec. 35A of the Penal Law, 1977.)

127 Israel has ratified the 1961 Single Convention on Narcotic Drugs, and the 1971 Convention on Psychotropic Substances. Measures have been taken (but not yet completed) to comply with the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

128 See, e.g., Ben-Yehuda, N., “The Sociology of Moral Panics: Towards a New Synthesis”, (1986) 27 The Sociological Quarterly 495.CrossRefGoogle Scholar

129 See the War Against Drugs Authority Law, 1988, the provisions of which relate to prevention and treatment measures rather than penal ones. The Authority itself, however, has (like the Knesset Drugs Committee) generally been identified with a punitive approach.

130 See the Penal Law (Amendment no. 22) 1988. Among the changes brought about by this amendment was an increase in the maximum penalty for rape from 14 to 16 years, and additions to the list of aggravating circumstances for which the maximum penalty is 20 years.

131 See Penal Law (Amendment no. 30), 1990.

132 See secs. 368A-368C of the Penal Law, 1977, as enacted by the Penal Law (Amendment no. 26), 1989. A “vulnerable person” is defined under sec. 368A as “a person who owing to his age, his physical or mental illness or impairment, his defective intelligence, or for any other reason, is unable to take care of his living needs, his health or his welfare.”

133 See the Procedure (Examination of Winesses) (Amendment no. 2) Law, 1995.

134 Recent cases determined by the U.S. Supreme Court seem to indicate a likelihood that victim related evidence may encourage the use of capital punishment: see Sebba, L., “Sentencing and the Victim: The Aftermath of Payne”, (1994) 3 International Review of Victimology 141.CrossRefGoogle Scholar However empirical surveys indicate that victim involvement does not necessarily have the effect of rendering sanctions more severe: see Walsh, A., “Placebo Justice: Victim Recommendations and Offender Sentences in Sexual Assault Cases”, in Fattah, E.A. (ed.), Towards A Critical Victimology (Basingstoke: St. Martin's Press, 1992) 295 CrossRefGoogle Scholar; Erez, E. et al., Victim Impact Statements in South Australia: An Evaluation (Adelaide: South Australia Attorney-General's Department, 1994).Google Scholar

135 See Criminal Procedure Law [Consolidated Version], 1982, sec. 117; Evidence Ordinance, 1971, sec. 10A; Dangerous Drugs Ordinance [New Version], 1973, secs. 24, 31.

136 See Hoffnung, M., Israel—Security Needs vs. the Rule of Law (Jerusalem: Nevo, 1991)Google Scholar and the sources cited therein. Hoffnung notes that the legislation on the part of the Knesset, with which this article has been primarily concerned, has been rather limited in this area (ibid., at 293).

137 See: Hoffnung, ibid.; B'tselem, , The Military Judicial System in the West Bank (Jerusalem, 1989)Google Scholar; Violations of Human Rights in the Occupied Territories 1990/1991 (Jerusalem); and Human Rights Violations in the Occupied Territories 1992/1993 (Jerusalem).

138 B'tselem estimated that the number of detainees during the course of the Intifada exceeded 100,000: see p. 115 of their 1992/1993 report (ibid.).

139 See Cohen, S., “Politics and Crime in Israel: Reactions from the Home Front,” (1990) 17 Social Justice 5, at 9–10.Google Scholar

140 See Feeley, M.M. and Simon, J., “The New Penology: Notes on the Emerging Strategy of Corrections and its Implications”, (1992) 30 Criminology 449 CrossRefGoogle Scholar (see esp. p. 455); Bottoms, A., “The Philosophy and Politics of Sentencing,” in Clarkson, C. and Morgan, R. (eds.), The Politics of Sentencing Reform (Oxford: Clarendon Press, 1995), at p. 24.Google Scholar In this context Garland points to the policy of the British government of transfering responsibility for crime control to the community or the individual citizen; see D. Garland, “The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society,” British Journal of Criminology (forthcoming).

141 This law was enacted in 1990 as an “Emergency Provision”, to be in force for a determinate period, but was subsequently (in 1993) reenacted as an amendment to the Prison Ordinance (now secs. 68A–68E).

142 See the Prisons Ordinance (Amendment No. 12) Bill, 1990, H.H. no. 1975, p. 116. Indirectly, of course, the need to prevent overcrowding can be related to the provision of optimal conditions for the prisoners — and hence to the rehabilitative aim. It can similarly be related to human rights objectives (see below).

143 See B'Tselem, Violations of Human Rights in the Occupied Territories 1990/1991, supra n. 137, at chs. 8 & 9. On the other hand, many offenders were held in the regular prisons, thereby aggravating the problem of overcrowding, which in turn gave rise to the Administrative Release Law.

144 See the government's response in B'selem, , House Demolition during Operations against Wanted Persons (1993) 16.Google Scholar

145 See Shetreet, S., “Ransom Money — Penal Sanction in the Hands of the Administration?” (1970) 2 Mishpatim 577.Google Scholar

146 Reference may also be made here to the laws designed to alleviate the burden on the traffic courts, by the aministrative processing of such cases.

147 See Cohen, B., “The Practice of Israel in Matters Related to International Law,” (1992) 26 Is. L.R. 559 CrossRefGoogle Scholar, at 572. The ratification of these conventions, however, has had much less impact on Israel's criminal justice system than the Basic Law: see Sebba, L., “Human Rights and the Penal System: Have the 90s Produced Two Constitutional Revolutions?” (1996) 13 Mehkarei Mishpat 183.Google Scholar

148 See secs. 10 and 28 of the Treatment of Mentally Sick Persons Law, 1991.

149 See, especially, in the present context, Karp, Y., “Criminal Law — Janus of Human Rights: Constitutionalization in the Light of the Basic Law: Human Dignity and Liberty”, (1995) 42 HaPraklit 125–64Google Scholar; See also Sebba, supra n. 147 and other articles in the same issue.

150 See, eg., Gross, E., “The New Constitutional Rights of the Defendant in Israel”, (1996) 13 Mehkarei Mishpat 155–182.Google Scholar

151 See the Criminal Procedure (Powers of Enforcement — Body Search on Suspect) Law, 1996, and the Criminal Procedure (Powers of Enforcement — Arrests) Law, 1996.

152 See the Public Defender Law, 1995. An earlier administrative measure adopted by the Minister of Justice resulted in an increase in the tariff according to which private attorneys were paid for court appointments, rendering this task more attractive to advocates.

153 Thus, for example, first offenders sentenced for up to five years will have a presumptive right to early release. The proposals — circulated in draft form by the Ministry of Justice as Penal Law (Early Release of Prisoners and Commutation of Life Imprisonment), 1995 — follow the recommendations of a committee appointed by the Attorney-General and comprising jurists in the public service and criminologists: see Report of the Committee on the Early Release of Prisoners by the the Release Committee (Jerusalem, 1991).

154 As well as of the professional civil servants: see above, text accompanying n. 8.

155 See, e.g., Joutsen, M., The Role of The Victim of Crime in European Criminal Justice Systems (Helsinki: HEUNI, 1987).Google Scholar The nebenklage system enables the victim to be represented during the course of the criminal trial.

156 However, in certain cases, private criminal prosecutions may be brought: see secs. 68–73 of the Criminal Procedure Law (Consolidated Version), 1982 (36 L.S.I. 35).

157 Sec. 43 of the Criminal Code Ordinance, 1936; as to the subsequent revision of this provision, see below.

158 See: the Law of Evidence Revision (Protection of Children) Law, 1955 (9 L.S.I. 102). Mandatory reporting was introduced in 1974 by means of an amendment to the Youth (Care and Supervision) Law of 1960. (This provision has now been replaced by sec. 368D of the Penal Law; see following note).

159 See sec. 368D of the Penal Law, 1977 (as amended in 1990). Thus mandatory reporting is no longer confined to abused children, but also applies to the other categories referred to in n. 132 above.

160 See the Law for the Prevention of Violence in the Family, 1991 (cf. n. 119 above).

161 See sec. 77 of the Courts Law (Consolidated Version), 1984 (38 L.S.I. 271); sec. 42A of the Evidence Ordinance [New Version], 1971 (2 L.S.I. [N.V.] 198).

162 See Miller, A.L. and Sebba, L., “Crime Victim Compensation: An Israeli Proposal”, (1987) 20 The Comparative and International Law Journal of South Africa 47 Google Scholar; Yanay, U., “Assistance for Victims of Violent Crime: Issues in Policy and Welfare,” (1994) 14 Hevra VeRevaha, 129–146.Google Scholar

163 See the article on restitution by Y. Karp in this issue on p. 331.

164 See above, nn. 132–3, and accompanying text. The nomenclature adopted under the Israeli law is similar to that used for defendants, so that it should more properly be called a pre-sentence report. The same amendment provided for the protection of victims of sex offences by providing that they need not face the accused while giving testimony if the court is of the opinion that the presence of the accused may harm either the victim or the testimony.

165 For the effects in other countries see above, n. 133.

166 See ibid.; see, generally, Sebba, L., Third Parties: Victims and the Criminal Justice System (Columbus: Ohio State, 1996).Google Scholar

167 See, e.g., Mawby, R.I., “Victims' Needs or Victims' Rights: Alternative Approaches to Policy-Making”, in Maguire, M. & Pointing, J. (eds.), Victims of Crime: A New Deal? (Milton Keynes: Open University, 1988) 127.Google Scholar

168 See Harnon, E., “Plea-Bargaining in Israel: The Proper Functions of the Prosecution and the Court, and the Role of the Victim” (1997) 27 Mishpatim 543 Google Scholar; L. Sebba, The Role of the Victim in Israel's Criminal Justice System, paper presented to the Anglo-Israel Judicial Exchange, 1996.

169 This refers to the modified form of proportional sentencing which followed the purely classical era, and which allowed for judicial discretion: see Cavadino and Dignan, supra n. 102, at 46ff.