1 Sec. 35(a) of the Penal Law 5737–1977 (hereafter Penal Law) states: “A court which has convicted a person of an offence may impose on him any penalty not exceeding the penalty prescribed by law for that offence”.

2 Murder has a mandatory sentence of life imprisonment. Rarely is a minimum period of imprisonment mandated; for example, sec. 273 of the Penal Law sets a minimum prison sentence of one month for assault on a policeman. Sec. 11 of the Nazi and Nazi Collaborators (Punishment) Law 5710–1950 (4 L.S.I. 154) set a minimum sentence of 10 years for certain special circumstances. Likewise, the Traffic Ordinance (New Version) (1 L.S.I. [N. V.] 222) includes provisions for mandatory revocation of drivers' licenses.

3 Sec. 3 of the Penal Law (Amendment 39) (Preliminary and General) 5754–1994, S.H. no. 1481, p. 348, adds Sec. 35a to the Penal Law, which reads as follows: “Where a person has committed an offence for which there is a mandatory punishment, the Court may impose a lighter sentence if it is convinced that special circumstances warrant such action.” This section has been strongly criticized on the grounds that it does not provide any criteria for exercising the judge's discretion.

4 Penal Law (Amendment 44) 5755–1995. S.H. no. 1537, p. 391. The law was passed on 31/7/95 and went into effect on 23/8/95, when Amendment 39 was to go into effect.

5 Sec. 35a does not apply at all to the Nazi and Nazi Collaborators (Punishment) Law, 5710–1950, to the Crime of Genocide (Prevention and Punishment) Law, 5710–1950, or to the Air Navigation (Offences and Jurisdiction) Law, 5731–1971. Sec. 1(b) of Amendment 44, mentioned above.

6 Sec. 2 of the aforementioned Amendment 44, added sec. 300a to the Penal Law, allowing the court to pass a lighter sentence than the mandatory punishment for murder when the accused suffers a mental disorder short of mental illness, when the accused used somewhat more force than reasonable in self-defense, duress or necessity, or in specific instances of murder following prolonged brutality.

7 Primarily in Chapter Six of the Penal Law, but also in other laws, such as the Probation Ordinance (New Version), 5729–1969 (2 L.S.I. [N.V.] 66).

8 State of Israel v. Ploni, (1995) 49(iii) P.D. 1.

9 In my opinion one ought to refine this notion and say that the maximum sentence is the penalty which the legislator views as the fitting punishment for the most severe case. It is not the point of departure for the typical case, nor is it the fitting punishment for the typical case.

10 Indeed, in the case at hand, the maximum sentence of 20 years imprisonment was imposed on a father who had committed sexual offences, raped and brutally abused his minor daughter. It should be noted that 20 years imprisonment is the maximum sentence for one count, and that the father was convicted on several counts. The other judges on the bench concurred with this judgment, but the generalization about imposing the maximum sentence was made by Judge Kedmi.

11 Sec. 36 of the Penal Law.

12 Sec. 61 of the Penal Law.

13 Sec. 71a(a) of the Penal Law.

14 Although such a section can be found in the Military Justice Law, 5715–1955, sec. 21 (9 L.S.I. 184).

15 Such a question arose in Supreme Court case, Plonim v. Almoni (1986) 40(i) P.D. 483.

16 Only the Probation Ordinance (New Version), 5729–1969, makes a very general stipulation according to which the decision to issue probation shall be determined “having regard to the circumstances, including the character, antecedents, age, home surroundings, physical health or mental condition of the offender, the nature of the offence and any extenuating circumstances in which it was committed” (Sec. 1).

17 Sec. 1 of the Probation Ordinance, ibid., implies rehabilitation as one of the factors in sentencing. Secs. 37 and 38 of the Penal Law, which deal with the probation officer's presentence report, also indicate that rehabilitation is a consideration in sentencing.

18 In 1992 the Council of Europe adopted a resolution recommending that member states institute greater consistency in sentencing, and called on member states to see to it that their legislatures or a body acting on their behalf determine the rationale for sentencing and the priorities that should be given the various considerations. Council of Europe, Recommendation No. R(92)17 of the Committee of Ministers to Member States Concerning Consistency in Sentencing.

19 Such provisions exist in many countries, e.g., in Finland, in the Penal Code of Finland, Art. 6 s. 1, (New-York University Series of Foreign Criminal Codes, No. 27) and in English law, in the Criminal Justice Act, 1991.

20 On the general question of discretion and the principle of legality cf., for example, Davis, K. C., Discretionary Justice (Louisiana State Univer., 1969).Google Scholar The relationship between the principle of legality and discretion in sentencing holds a central place in legal literature today, so I see little point in citing a long list of sources. I deal with this issue at length in my doctoral dissertation, Legal Frameworks for Guiding the Exercise of the Judge's Discretion in Sentencing, (Bar Ilan, 1991).

21 This is discussed in Kannai, , “The Effect of the Aims of Punishment on the Judge's Discretion in Sentencing,” (1993) 10 Mehkarei Mishpat 39.Google Scholar Since Israel does not have a specific punishment model, it is difficult to assess how much discretion is necessary.

22 Courts Law (Consolidated Version), 5744–1984, secs. 41 and 52 (38 L.S.I. 271). Criminal Procedure Law (Consolidated Version), 5742–1982, secs. 196 and 213 (36 L.S.I. 35).

23 In this regard Israel was ahead of other legal systems, which only recently allowed appeal of the severity of the sentence. In American Federal law this right was not given until the enactment of the Comprehensive Crime Control Act, 1984, as part of the changes instituted in the entire procedure of passing judgment and setting guidelines.

24 Sec. 193 of the Criminal Procedure Law (Consolidated Version), 5742–1982, does not require that the judgment be substantiated, whereas sec. 182 of the same Law requires that the judicial verdict be substantiated. The requirement to give reasons for the sentence was established by a ruling of the Supreme Court in the early years of the State, in Biofson v. The Attorney General, (1949) 2 P.D. 489. Justice Agranat, President of the Supreme Court, viewed this ruling as an important step forward in Israeli case law. Cf. S. Agranat, “Developments in Criminal Law,” (1986) 11 lyunei Mishpat 33.

25 In many states the requirement of stating the argument for deciding the punishment was part of the process of regulating judicial discretion in sentencing. On the importance of substantiating the sentence, cf. A. Ashworth, Sentencing and Criminal Justice (London, 1992) 295.

26 Even with the possibility of appeal, one cannot have significant control without a model by which to determine the fitting punishment. Cf. L. Palmer, “The Role of Appellate Courts in Mandatory Sentencing Schemes,” (1979) 25 UCLA L. R. 753.

27 Cf. Kannai, supra n. 21, at 230–236.

28 The court expressed the following opinion in its discussion of the prosecution's policy on appealing the severity of the sentence: “If the [prosecutor's] arguments are accepted, this Court will set policy, so that its ruling will serve in the future as a guideline binding on the District Courts and Courts of the Peace”. State of Israel v. Roymi, (1980) 34(iii) P.D. 527, at 531. Also cf. State of Israel v. Tchaikovsky, (1987) 41(iv) P.D. 492, at 496.

29 Primarily in my Doctoral Dissertation, supra n. 20, and in Kannai, “The Effect of the Aims of Punishment on the Judge's Discretion in Sentencing,” supra n. 21.

30 Karp, J., “Criminal Law — Janus of Human Rights: Constitutionalization and Basic Law: Human Dignity and Liberty,” (1995) 42 HaPraklit 64 Google Scholar, at 98.

31 J. Karp, ibid., at 106. Also cf. Kannai, , “Guidance for Sentencing in Supreme Court Judgments,” (1994) 24 Mishpatim 97 Google Scholar, at 112–115, and 136–138.

32 On the right to equality, as reflected in this Law, cf.: Barak, A., “Protected Human Rights: Scope and Limitations,” (1993) 1 Mishpat Umimshal 253 Google Scholar, at 261; Barak, A., “Human Dignity as a Legal Right,” (1994) 41 HaPraklit 271 Google Scholar, at 279; Karp, J., “Basic Law: Human Dignity and Liberty — A Biography of Power Struggles,” (1993) 1 Mishpat Umimshal 323.Google Scholar For a discussion of the same issue after the addition of sec. 1 to the Law, cf. Karp, J., “Questions on Human Dignity according to the Basic Law: Human Dignity and Liberty,” (1995) 25 Mishpatim 129.Google Scholar In case law, cf. Hopert v. Yad va-Shem, (1994) 48(iii) P.D. 353, at 362 (Justice T. Or), Miller v. The Minister of Defense, (1995) 49(iv) P.D. 94, at 131–132 (Justice D. Dorner).

33 This section, added in 1994, states: “The basic rights of the human being in Israel are based on recognition of human worth, the sanctity of human life, and human freedom, and these shall be respected in the spirit of the principles in Israel's Declaration of Independence”. S.H. 1994, at 90. For the circumstances surrounding the addition of this section, cf. Karp, “Questions…,” supra n. 32, at 149–154.

34 Sec. 8 of the Basic Law, as amended in 1994, states: “The rights conferred by this Basic Law shall not be infringed save where provided by a law which accords with the values of the State of Israel, which was intended for a fitting purpose, and only to the extent necessary, or by virtue of authority explicitly vested by such a law”. This is the limitations section. (S.H. 1994, at 90.)

35 Barak, A., Interpretation in Law, Vol. 3: Constitutional Interpretation (Jerusalem, 1994) 503–504.Google Scholar

36 Sec. 10 states: “This Basic Law shall not derogate from the validity of any law existing on the eve of this Basic Law coming into force”.

37 Here we shall not take up the question of whether it is at all warranted to establish a given offense. This is a weighty question in its own right. Cf.: J. Karp, supra n. 30; Kremnitzer, M., “Constitutional Principles and Criminal Law,” (1993) 27 Is. L.R. 84.CrossRefGoogle Scholar

38 J. Karp, supra n. 30, at 113–115.

39 As in Cohn, H., “The Values of a Democratic Jewish State — Studies in the Basic Law: Human Dignity and Liberty”, (1994) HaPraklit Jubilee Volume 9, at 27 Google Scholar; as well as Barak, “Human Dignity as a Legal Right”, supra n. 32, at 280. There is no agreement on whether capital punishment for genocide and for treason during a war are also a priori, prohibited. One might also pose the question as follows: Is capital punishment a penalty unfitting the values of the State of Israel, or must one examine whether in the specific case, it does accord with the values of the State, is intended for a fitting purpose, and does not exceed the extent necessary?

40 For example, cf. Barak in Interpretation in Law, supra n. 35, at 169, who also relies on German decisions pointing in the same direction.

41 Thynne, Wilson and Gunnel v. U.K. (1990) 13 EHRR 666. The administrative method of obtaining release from mandatory life imprisonment for murder has many parallels to the practice in Israel of the President terminating a sentence, although the procedure is altogether different. Some changes have been instituted in English law regarding release from life imprisonment, and further changes have been proposed. For an overview of the subject in English law, and the impact of the decisions of the European Court in this regard, cf. Windlesham, Lord, “Life Sentences: Law Practice and Release Decisions, 1989–93” [1993] Crim. L.R. 644 Google Scholar; Palmer, S., “Redefining the Meaning of Life: The Early Release of Life Prisoners”, (1994) 53 C.L.J. 480.CrossRefGoogle Scholar

42 This is implied from the German decisions, Barak, supra n. 35, but apparently not from the decision of the Court of Europe in the Wynne case regarding mandatory life imprisonment for murder. It should be noted, however, that the question facing the court was deliberated according to the European Convention on Human Rights, whose provisions differ from those in the Basic Law. See sources cited supra n. 41.

43 In the case of capital punishment, one might also pose the question as follows: Is life imprisonment without the possibility of release a penalty unfitting the values of the State of Israel, or must one examine whether in the specific case it does accord with the values of the State, is intended for a fitting purpose, and does not exceed the extent necessary?

44 This question is raised in J. Karp, supra n. 30, especially nn. 213–215.

45 This approach is accepted by all our judges. Cf., for example, Justice Elon in Swissa v. State of Israel, (1992) 46(iii) P.D. 338, at 343. In the Ganimat case, Cheshin J. cites a long list of judgments stating that existing laws should be interpreted in the light of the Basic Law. But, in his opinion, this refers to minor adjustments and not a substantial change in the interpretation of existing laws. Ganimat v. State of Israel, (1995) 49(iii) P.D. 355.

46 ibid.

47 Barak, J. ibid., sec. 11 of his judgment.

48 Barak, J. ibid., sec. 9 of his judgment.

49 This is not the place to discuss the details of the controversy in the Ganimat case. However, we shall see that this case is of great importance to our discussion.

50 For example, in offenses of treason under secs. 96, 97 and 99 of the Penal law. Sec. 96 of the law provides that “a court shall not impose the death penalty unless the offence was committed in a period in which armed hostilities are carried on by or against Israel”.

51 As added in Amendment 44, supra n. 4.

52 According to case law, where the offense carries a mandatory life sentence, indeterminate life terms can be given even when the court is entitled to pass a lighter sentence. Cf., Pioni v. State of Israel, (1992) 46(iii) P.D. 648. Bach J., expressing the minority opinion, dissented; State of Israel v. Plonim, (1992) 46(v) P.D. 94. Prof. Feller holds that when the court is entitled to give a lighter sentence, life imprisonment is no longer mandatory and the maximum permissible sentence is 20 years, according to sec. 41 of the Penal Law. Feller, S. Z., “Mandatory Life Imprisonment, Life Imprisonment and Imprisonment for Twenty Years”, (1994) 2 Mishpat Umimshal 507.Google Scholar

53 Mandatory life imprisonment was set by a previous law, which comes under the provisions of the section on preservation of laws.

54 Raz, Y., “Legal Principles and Judicial Discretion”, (1968) 2 Mishpatim 317 Google Scholar, at 320. One might say that even on the basic principles there is no agreement, since there are different opinions on the objectives of punishment. Cf. Frankel, M., Criminal Sentences: Law Without Order (New York, 1973) 7.Google Scholar

55 For the impact of the Basic Law on assessing the severity of an offense, cf. Gabbai v. State of Israel, (1992) 46(iv) P.D. 488.

56 I do not mean detailed provisions, but only legislation which sets forth basic principles, such as a punishment model. For further detail on my suggestion, cf. Kannai, , “Proposal for Sentencing Reform”, (1996) 13 Mehkarei Mishpat 227.Google Scholar

57 By the considerations or reasons for punishment I do not mean the General Justification Aim of punishment, but rather those considerations that enter in determining the distribution of punishment. Cf. Hart, H.L.A., Punishment and Responsibility (Oxford, 1968) 4, at 6–8.Google Scholar

58 Kannai, supra n. 21, treats this question at length. Sec. 6 of the article illustrates the impact of the central consideration for punishment on the choice between imprisonment and probation.

59 Ploni v. State of Israel, (1980) 34(ii) P.D. 421, at 434.

60 Binyamin v. State of Israel, (1981) 35(iv) P.D. 744.

61 I.e., general deterrence.

62 Cf., for example, Aharoni v. State of Israel, (1983) 37(i) P.D. 673, at 695.

63 For example, Fur v. State of Israel, (1984) 38(i) P.D. 534. For a discussion of sentencing for offenses of moderate severity, see below.

64 For example, State of Israel v. Abu Ni'a, (1988) 42(iv) P.D. 599. The same holds for drug offenses.

65 For example, see Justice H. Cohn's remarks in Aberag'il v. State of Israel, (1978) 32(i) P.D. 141.

66 For example, State of Israel v. Logasi, (1981) 35(ii) P.D. 477; Miara v. State of Israel, (1982) 36(iv) P.D. 223.

67 For example, in drug offenses; cf. the Roymi case, supra n. 28.

68 The Miriam Zegel affair provides an extreme example. In this case a young woman without a previous criminal record was sentenced to 7.5 years imprisonment for importing a large quantity of drugs, notwithstanding recommendation by a probation officer that she be granted probation. Zegel v. State of Israel, (1986) 40(ii) P.D. 668.

69 As in the Tchaikovsky case, supra n. 28, and the Zegel case, supra n. 68.

70 For differences of opinion between judges, cf. for example, State of Israel v. Levy, (1992) 46(i) P.D. 429; Binyamin v. State of Israel, (1986) 40(iii) P.D. 439; State of Israel v. Tchaikovsky, supra n. 28.

71 For a more detailed discussion of the significance of the various considerations in punishment as reflected in Supreme Court decisions, and their impact on sentencing, cf. Kannai, “Guidance for Sentencing in Supreme Court Judgments”, supra n. 31.

72 An exception is the discussion of the legitimacy of desert as a factor in sentencing, as in the decisions of Cohn J. in “The Polite Rapist”, supra n. 59.

73 For example, cf. Andenaes, J., Punishment and Deterrence (Ann Arbor, 1974), Ch. 5, pp. 129–151 Google Scholar; Zimring, F.E. and Hawkins, G.J., Deterrence (Univ. of Chicago Press, 1973) 50.Google Scholar Also cf. Karp, supra n. 31, at 106.

74 See the discussion of the incapacitation model of punishment in Kannai, supra n. 21.

75 The main problem here is using human beings to achieve an objective of society. Barak explicitly mentions this as an example of an infringement of human dignity in his article, “Human Dignity as a Constitutional Right”, supra n. 32, at 274–275. There are other difficulties as well. Cf. sources cited supra n. 73, and n. 191 in Kannai, “The Effect of the Aims of Punishment on the Judge's Discretion in Sentencing”, supra n. 21. Also see the discussion of deterrence and detention in the Ganimat case, supra n. 45, sec. 6 of Dorner J.'s decision, and secs. 21, 24, and 25 of Barak J.'s decision.

76 Sec. 11 of the Basic Law states: “Every authority of the government authorities is under a duty to respect the rights conferred by this Basic Law”. This section also applies to the courts.

77 Since the Criminal Justice Act, 1991, English law no longer permits passing a stricter sentence for the purpose of deterrence.

78 Supra n. 68 and the discussion there. Note that Ganimat does not deal with punishment.

79 Justice Dorner, in sec. 5 of her decision, discusses the court's use of its discretion to infringe freedom and says that the court must exercise its discretion “so that it be infringed only to the least necessary extent”. In paras. 10 and 16, Barak J. discusses the use of governmental and judicial discretion.

80 Sec. 17 of the decision.

81 One could argue that sec. 8 of the Basic Law is of no concern here, since it is not a question of a law infringing rights protected by the Basic Law. The courts, as one of the government authorities, must respect these rights (sec. 11), and if arguments of deterrence infringe human dignity, the court may not take them into consideration. But we have already seen that Barak J. invoked the said terms of sec. 8, viewing the first stipulation of sec. 8 (of the Law) as bearing on the law granting the discretion, and the validity of the latter law is preserved by sec. 10 of the Basic Law.

82 Even this provision has come under fire. Prof. Kremnitzer holds that one should never pass a stricter sentence for fear of additional offenses being committed. Nevertheless, I believe that in such a case he would agree to setting sanctions such as those in Continental Law. Cf. Kannai, supra n. 56.

83 For a more detailed discussion of English law, cf. Kannai, supra n. 31.

84 For the possibility of such legislation in Israel, see below.

85 “The Polite Rapist”, supra n. 59.

86 Tchaikovsky, supra n. 28.

87 Biofson v. The Attorney General, (1949) 2 P.D. 489, at 491.

88 Perhaps, after further examination, it may be concluded that deterrence or incapacitation do not meet the values of the State of Israel or are not a fitting purpose. It seems that H. Cohn J. does not rule out deterrence, in his article, supra n. 39, at 26–27. On the other hand, his remarks there imply reservations about desert, at least with regard to the death penalty.

89 An important consideration of the court in determining the sentence is that of consistency in sentencing. As the court said in the Faevisch case, the court must “see to it that for a given offense one offender not receive a penalty significantly different from the penalty imposed on another offender for a similar offense, where the rest of the circumstances affecting the court's decision in passing judgment are similar. We have said ‘similar’ and not ‘the same’ or ‘equivalent’, because one cannot find two cases that are identical or even equivalent in all circumstances. But for the purpose of the principle of consistency in punishment, we must be satisfied with penalties of similar severity for cases whose circumstances are similar and give the impression of equality”. Faevisch v. State of Israel, (1981) 35(iv) P.D. 701, at 706–707.

90 Hassin, Y. and Kremnitzer, M., “Consistency in Sentencing Traffic Violations”, (1988) 18 Mishpatim 103.Google Scholar

91 For example, in sentencing aimed at rehabilitation, importance attaches to the circumstances regarding the offender; in sentencing based on desert, importance attaches to the circumstances of the offense. See the discussion of equality in Kannai, supra n. 21.

92 In a case where different benches sentenced the same offender differently for similar offenses, the court said: “We might not have found justification for intervening in the judgment of the District Court were it not for the unaccountable discrepancy between the sentence given the plaintiff in this case and the sentence passed against him in the previous case. In both cases the plaintiff was convicted of the theft of mail from a cargo jet that landed at Ben Gurion airport, and of the theft of diamonds which were in those items of mail, while taking advantage of his work as a porter at the airport… The discrepancy in the sentence between the two cases, apparently stemming from different approaches on the part of the courts that tried the plaintiff, is likely to lead to a sense of injustice…” Mirelshvili v. State of Israel, (1980) 35(i) P.D. 391. One of the courts sentenced the accused to 5 years imprisonment, and the other court to 9 years. Also cf. Apello v. State of Israel, (1984) 39(i) P.D. 166.

93 For example, judges differ on drivers' license revocation for traffic offenses; State of Israel v. Buaron, (1988) 42(ii) P.D. 344. Also cf. Hassin and Kremnitzer, supra n. 90, and their conclusion in this regard, loc. cit. at 129.

94 State of Israel v. Bar-On, (1988) 42(i) P.D. 382, at 388. Compare Apello, supra n. 92.

95 Buaron, supra n. 93, at 348; State of Israel v. Raz, (1985) 39(iii) P.D. 225. However the court said that the level of punishment should be increased gradually. Kalman v. State of Israel, (1989) 43(ii) P.D. 551.

96 The law in Alaska, for example, lists 31 special circumstances; Alaska Stat. sec. 12.55.155(c)-(d), (1984). The list in Finland is short, and aggravating circumstances pertain only to the offense and to a previous criminal record; Finland's Criminal Code, Chapter 6, secs. 2 and 3, Vol. 27 in New York University's edition of Criminal Codes. Also cf. secs. 164–170 in the proposed new Preliminary Part and General Part of the Penal Law, drafted by Prof. Feller and Kremnitzer, in this issue on p. 36.

97 As in Feller and Kremnitzer's proposal, ibid.

98 The most striking illustrations come from Minnesota (Minnesota Sentencing Guidelines Dl, M.S.A. 244 App.) and U. S. Federal law. (28 U.S.A.C. 994(d) (West 1993)).

99 For a more detailed discussion, cf. Kannai, supra n. 21, at 45.

100 For an attempted analysis of the aggravating circumstances pertaining to conviction for fraud under aggravating circumstances, cf. Bein, D., “Attempting to ‘Tame’ the Aggravating Circumstances in Offenses of Fraud and Forgery”, (1970) 26 HaPraklit 378.Google Scholar

101 See the discussion of considerations in sentencing, above.

102 Examples of such circumstances mentioned in case law include: sophistication and preparation (State of Israel v. Mishali, (1978) 32(iii) P.D. 245); the status of the offender among the accomplices to the crime (Ohana v. State of Israel, (1989) 35 Savir 325); cruelty in commission of the offense (Gedilove v. State of Israel, (1988) 42(iii) P.D. 474); personal characteristics of the victim and the victim's vulnerability (Turjeman v. State of Israel, (1985) 39(iv) P.D. 74).

103 Raowi v. State of Israel, (1985) 39(i) P.D. 103.

104 Katashvilly v. State of Israel, (1980) 34(iv) P.D. 57.

105 Although the court took the value of the goods stolen into consideration in other cases of theft from mail sacks at the airport. Cf. Mirelshvili, supra n. 92.

106 In this regard, cf. Bazak, Y., Criminal Punishment, Methods and Principles (Dvir, 1981, in Hebrew) 61–67 Google Scholar; and Shacher, , “The Fortuitous Gap in Law and Morality”, (1987) 6 Crim. Justice Ethics, 12.CrossRefGoogle Scholar

107 Secs. 187–188.

108 Goren v. State of Israel, (1983) 37(i) P.D. 204.

109 In Abu-shnav v. State of Israel, (1991) 37 Savir 350, reduction of the sentence was requested on the grounds that Arabs have “different patterns of behavior and background”. The plea was rejected in the strongest terms.

110 Cf. Hag’ Yichye, M., Rahav, G. and Teichman, M., “The Court of the Peace and Minorities in Israel” (1994) 4 Pelilim 157.Google Scholar

111 Even in legislation, as we have seen in sec. 1 of the Probation Ordinance (New Version) 5729–1969 and secs. 37–38 of the Penal Law, 5737–1977.

112 In my opinion, one can justify, and even require, limited consideration of certain socio-economic factors even for reasons of desert. Sometimes these circumstances affect the degree of guilt. See Kannai, supra n. 21, at 48–51.

113 Shefer v. State of Israel, (1984) 38(iv) P.D. 161.

114 Cf. Dessenshwilly v. State of Israel, (1988) 42(iii) P.D. 309; Gvili v. State of Israel, (1984) 38(iii) P.D. 469.

115 On regard for personal circumstances out of mercy, see Kannai, supra n. 21, at 50–51; and Kannai, supra n. 31, at 124–125.

116 Such as the disagreement between Justices Barak and Elon in the Zegel case, supra n. 68; also the Shefer case, supra n. 113. After having said that regard for the accused's character is unwarranted in the case of negligent driving causing death, the judge made clear that there is still room for fitting the sentence to the specific case. Perhaps the latter refers to considerations of mercy, whereas the former applies to considerations in sentencing such as rehabilitation.

117 Regard for a previous criminal record is quite problematical in the retributive punishment model, in terms of theory. But, in practice, it is highly necessary to take past records into account, both to create an operable scale of punishment and to answer the demands of the public and the judges. With regard to past criminal records in the retributive punishment model, see Kannai, supra n. 21, at 51 and the notes there.

118 Cf. Kannai, supra n. 31, at 121.

119 Cf. ibid., at 121–122, including notes.

120 Cf. Adult Probation Service v. Buchbut, (1979) 33(iii) P.D. 425, especially the decision of Ben-Porat J., at 430.

121 Sec. 71a of the Penal Law. Judge Elon calls on the legislature to permit such a combination; State of Israel v. Segel, (1981) 35(iv) P.D. 313, at 328; Pioni v. State of Israel, (1981) 35(iv) P.D. 438.

122 It is pointless to impose a fine on someone incapable of paying it. This could lead to an unwarranted prison sentence instead of a fine, simply because the convicted person has insufficient means. It should be noted, in this regard, that Israeli law lacks provisions to protect convicted persons of little means against the imposition and enforcement of fines. Such difficulties can be overcome somewhat by the provisions for pro rata payment of fines.

123 How important is it for the severity of the punishment to fit the severity of the crime in such penalties? To what extent should the penalty be tailored to the offender; should ability to carry out the penalty be taken into account; should the impact of the punishment on the accused be considered? How can one maintain equality among the accused? What sort of equality does one desire, and how feasible is such equality? These questions are far from easy and are compounded by the difficulty of comparing the various modes of punishment in terms of their severity.

124 The legislature of the state of Minnesota for years has been requesting the Sentencing Guidelines Commission to set similar guidelines for penalties other than imprisonment, just as it has set for prison sentences. The Commission has repeatedly refused to do so, for various reasons which we shall not discuss. However it is clear that one reason is the special difficulty in setting guidelines in this area. Cf. The Impact of the Minnesota Sentencing Guidelines: Three Year Evaluation, (1984) 130. Since then the Commission has been requested several times to set guidelines for sentences other than imprisonment, but has not done so. In 1991, the Commission issued a special report on punishments other than imprisonment: Minnesota Sentencing Guidelines Commission, Report to the Legislature on Intermediate Sanctions (1991).

125 Cf. State of Israel v. Harel, (1989) 43(iv) P.D. 31. In this case it was established that tax offenses should be punished by actual imprisonment, and not by alternative service, unless special circumstances warrant the latter.

126 Here, too, the Basic Law is likely to have an impact if it is interpreted as limiting the considerations of deterrence and incapacitation. See our discussion of the punishment model, above.

127 The accepted approach today calls for imprisonment as a last resort. In other words, only when the severity of the offense warrants imprisonment, should such a sentence be passed. This approach finds clear expression in sec. 1 of England's Criminal Justice Act, 1991. Although violent and sexual offenses constitute an exception to the rule, the rule is clear. The same approach is found in secs. A6 and B5, Council of Europe, Recommendation No. R(92)17 of the Committee of Ministers to Member States Concerning Consistency in Sentencing, (1992). I stress this because of the tendency to think that giving greater weight to desert in sentencing necessarily leads to passing more prison sentences. This is not born out by the facts. A correct understanding of desert means that prison sentences will not be given for offenses which are not too serious.

128 Cf. the discussion of the punishment model, above.

129 In other systems desert is the decisive consideration in determining the length of the prison term but is of lesser weight in deciding whether the penalty should be imprisonment or some other punishment. The judge is given more discretion in deciding this question, and greater weight is given to the circumstances of the offender.

130 In discussing selection of the mode of punishment two approaches stand out in the literature. One gives great weight to equality between offenders and to preserving proportionality between severity of the punishment and severity of the crime; cf. von Hirsch, A., Wąsik, M., and Greene, J., “Punishments in the Community and the Principles of Desert”, (1989) 20 Rutgers L.J. 595.Google Scholar The other gives less weight to equality between offenders, but maintains a degree of proportionality between severity of the punishment and severity of the crime; cf. Morris, N. and Tonry, M., Between Prison and Probation (Oxford Univ. Press, 1990).Google Scholar

131 This point, as well, is found in the Criminal Justice Act, 1991, sec. 6, and in the Recommendations of the Council of Europe, sec. B6, cited in n. 127.

132 See the discussion of the punishment model, above.

133 One could argue that regard for all personal circumstances leads to true equality. But such equality is not attainable; in practice, high regard for personal circumstances, when not accompanied by guidelines, is detrimental to equality and leads to differences from one judge to another. See the discussion of equality in Kannai, supra n. 21.

134 There have been various attempts in the literature to build a comparative scale of punishment. The best known theoretical attempt is that of H. Robinson, who compares various modes of punishment and builds units of punishment which are deemed to be of equivalent severity. His approach is discussed in detail in Kannai, supra n. 21, at 56–57. For the principal exposition of this method, see Robinson, P.H., “A Sentencing System for the 21st Century”, (1987) 1 Texas L.R. 66.Google Scholar What Robinson proposes is highly theoretical and extremely difficult to translate into practice, although the kernel of his idea is attractive. Here is a straightforward example of the difficulties it presents: since probation is not only, and perhaps primarily not, a penal sanction, its quantification is very difficult and highly dependent on the terms of probation and the extent of supervision and restriction entailed.

Criminology literature includes several studies that compare punishments in terms of their severity. Questionnaires were used to investigate which punishments are perceived by the public as harsher and how much so. The respondents were asked to assign penal weights to various punishments, thus making comparison possible. It was found, for example, that a very high fine was perceived as equivalent to several years of imprisonment. Ten years probation (apparently without extremely restricting conditions) were equivalent to one to one and a half years in prison. On the other hand, a suspended prison sentence, even if long, was not perceived as equivalent to an actual prison sentence, even if short. In this manner the researchers tried to build tables of equivalent punishments in terms of their penal value, as perceived by the public's assessment of severity of punishment. Cf. for example, Sebba, L. and Nathan, G., “Further Explorations in the Scaling of Penalties”, (1984) 23 Brit. J. of Criminology 221.CrossRefGoogle Scholar I cite this criminological study to show that despite my criticism of Robinson, perhaps this field of inquiry is not entirely too theoretical and could be developed to produce useful results.

135 For example, in a suspended prison sentence important factors include the conditions of the sentence, their duration, and of course the length of the suspended sentence. For a more detailed discussion of building a scale of penalties according to severity, see Kannai, supra n. 20, at 83–85.

136 H.H. (1986) 77.

137 This is well illustrated by Levi v. State of Israel, (1992) 46(i) P.D. 429.

138 Shimshoni v. State of Israel, (1988) 42(iii) P.D. 730; State of Israel v. Vaqnin, (1989) 43(i) P.D. 511; State of Israel v. Adin, (1991) unpublished.

139 In 1990, the Ministry of Justice issued a memorandum on amending the sections of the Penal Law on community service in lieu of imprisonment, one of its proposals being to extend this option from prison terms of up to six months to terms of up to one year.

140 The revocation of drivers' license also raises questions. A study has shown that judges differ considerably from one to another in their imposition of this penalty. (Y. Hassin and M. Kremnitzer, “Consistency in Sentencing Traffic Violations”, supra n. 90.) We cannot expect Supreme Court decisions to provide detailed guidelines on this point, since few such cases (i.e. those in which there is a second appeal) reach the Supreme Court. One such case was the Buaron affair, supra n. 93. In this case the traffic court judge deemed the accused a “traffic criminal” and suspended his license for five years. The defendant's appeal to the District Court was accepted and the sentence commuted. The state appealed the case to the Supreme Court where the five year's revocation was reinstated, and the lower court was reproved by the Supreme Court. The Supreme Court stressed that license revocation is an extremely effective penalty for traffic violations. What was meant by this is not clear. Is it an “effective” punishment in the sense that it is good at deterring others, or that it protects the public against dangerous drivers? Studies show that many drivers continue to commit traffic violations after having had their license revoked, especially when the revocation is for a long time. For example, cf. Shavit, G., “The Contribution of Criminological Research to Sentencing Traffic Violators”, (1986) 4 Studies in Criminology 12–15.Google Scholar Nevertheless, it appears that the courts are continuing to suspend drivers' licenses for long terms, even in the case of young drivers.

141 Sec. 186 of the Criminal Procedure Law (Consolidated Version) 5742–1982 proscribes imposing more than one punishment for conviction on multiple counts pertaining to the same act: “The court may convict the accused of each of the offences of which he is shown to be guilty by the facts proved before it, but it shall not punish him more than once for the same act”.

142 Sec. 45 of the Penal Law states: “(a) Where a person is sentenced in one trial to terms of imprisonment in respect of different offences, and the court does not direct that he shall undergo all or part of them consecutively, he shall only undergo the longest term”.

143 For example, cf. Aberg'il v. State of Israel, supra n. 65; Kobi v. State of Israel, (1976) 30(ii) P.D. 757.

144 For further discussion, cf. Kannai, supra n. 31, at 125–134.

145 Cf. the disagreement between Justices Elon and Barak in “The Polite Rapist”, supra n. 59.

146 State of Israel v. Livni, (1990) 3 Pesakim 330.

147 For example, State of Israel v. Arad, (1991) 45(v) P.D. 121 (on community service in lieu of imprisonment). Cf. also Edri v. State of Israel, (1990) 44(i) P.D. 305.

148 One must bear in mind, however, that only the sentence given, and not the substantiation for it, may be appealed. Occasionally an appellate court will uphold the sentence, even if it disagrees with the reasoning behind it; on rare occasions it will intervene in the matter of sentencing, even if it agrees with the arguments but believes that they were not correctly applied. Cf. Barak J. in Majar v. State of Israel, (1980) 30(ii) P.D. 93, at 96.

149 Supra n. 24.

150 This was recently reasserted in State of Israel v. Sabag, (1992) 4&psgr;) P.D. 437.

151 Edri, (1990) 44(iv) P.D. 227, at 243. Cf. also State of Israel v. Raz, (1985) 39(iii) P.D. 225, at 227, and Buaron, supra n. 93. On more than one occasion the Supreme Court has reproved District Courts for replacing the discretion of the traffic court with their own.

152 These differences perhaps account to some extent for the dispute between Justices Elon and Barak in the Zegel case, supra n. 68. Justice Elon held against intervention in the sentence, even though he believed that one could have passed a somewhat lighter sentence on grounds of mercy.

153 For example, in Tchaikovsky, supra n. 28, the minority judge held that the lower court had been wrong not to sentence the accused to prison, and therefore he stressed that the fitting punishment is imprisonment but did not hold that one ought to intervene in the judgment.

154 Cf. also Buaron, supra n. 93.

155 Cf. Chief Military Prosecutor v. Naveh, (1991) 45(v) P.D. 479. Although in the end the appeal was not granted, the Supreme Court handed down instructions on the proper sentencing policy for high-ranking army officers convicted of traffic offenses.

156 Cf. Atiyah's remarks on the danger of handing down decisions on a specific case without paying sufficient attention to general principles. He relates to the way the courts pass judgment in England. Atiyah, P.S., Pragmatism and Theory in English Law, (London 1987) 129–130.Google Scholar

157 Tchaikovsky, supra n. 28, at 496.

158 Cf. Barak, A., Judicial Discretion, (Papyrus, Tel-Aviv, 1987) 230–231.Google Scholar

159 Such eventualities are likely to be limited, especially when the norms are set legislatively, and they depend on the formulation and flexibility of the norm.

160 Perhaps this is how one should understand the ruling in Binyamin, supra n. 60, in which a father who killed his daughter was sentenced to seven years imprisonment.

161 Cf. Barak, supra n. 158.

162 Cf., for example, Atias, supra n. 28.

163 Cf. Barak, supra n. 158.

164 Cf. supra n. 54.

165 One must distinguish between the problem at hand and the assumption made by researchers in the Albany study that the total of court decisions regarding punishment expresses the courts' sentencing policy. That study deals with judgments passed by lower courts and therefore does not concern the issue at hand. On the Albany study and its underlying assumption, see my article, “Sentencing Guidelines”, (1986) 5 Mehkarei Mishpat 235, at 243–245.

166 Cf. supra n. 54.

167 As well as guidelines established by virtue of authority explicitly vested by the law; This is not the place to discuss whether such guidelines ought to be set in Israel today. For a discussion of this question, see Kannai, supra n. 56.