1 See Rolph, C.R., The Queen's Pardon (London, 1960)Google Scholar.

2 See Bresler, F., Reprieve: A Study of a System (London, 1965)Google Scholar.

3 See Martineau, R., “Appeals and Appellate Practice”, in Janosik, R., ed., Encyclopedia of the American Judicial System (New York, 1987)Google Scholar.

4 The term “free pardon” (in contrast to an ordinary “pardon”) is used where an official acknowledgment is made of a miscarriage of justice.

5 Formerly, the President, after an election, had the power to confer on one of the members of the Knesset the right to attempt to set up a government that would be accorded the support of the Knesset. This power lapsed with the new election system adopted in Israel, of direct elections for the Prime Minister.

6 Professor David Libai, when Minister of Justice, withdrew from all involvement in a plea for pardon which he had originally presented as the prisoner's defense lawyer, before his appointment as minister. Other examples have arisen where the minister personally knew the petitioner, e.g., the Minister of Justice Tzachi Ha'negbi, in the case of the petition by editor of the newspaper, Ma'ariv, a newspaper for which his mother writes.

7 But see, especially, the comprehensive Ph.D. dissertation by Sebba, Leslie, on “Pardons”, (The Hebrew University, 1976)Google Scholar.

8 See, for instance, Weinglass, L., Race for Justice: Mumia Aba-Jamal's Fight Against the Death Penalty (Monroe, Maine, 1995)Google Scholar. The author is the condemned prisoner's lawyer.

9 See Horton, K.C., “Life Imprisonment and Pardons in the German Federal Republic”, (1980) 29 Intn'l and Comp. L.Q. 530CrossRefGoogle Scholar.

10 See Barak, A., “Human Dignity as a Constitutional Right”, (1994) 41 HaPraklit 280Google Scholar. He refers to a German case — 45 Bverj. GE 187 (1977).

11 van Zyl Smit, D., “Is Life Imprisonment Constitutional? The German Experience”, (1992) Public Law 263Google Scholar; and “Life Imprisonment as the Ultimate Penalty in International Law: A Human Rights Perspective”, (1998) 9 Crim. L. Forum.Google Scholar

12 See The Soering Case in Europe, 161 ECHR, Ser. A; and see my discussion of this and similar cases, “The Penological Exception to Extradition: On Ultimate Penalties, Human Rights and International Relations”, (1993) 27 Is. L.R. 310CrossRefGoogle Scholar. For South Africa, see State v. Makwanyane and Another (1995) 6 BCLR 665 (CC); see also an earlier case in neighboring Zimbabwe, with its critical approach to the death penalty — Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, Zimbabwe and Others 1993(4) SA 239(25).

13 Sheleff, L., Ultimate Penalties: Capital Punishman, Life Imprisonment and Physical Torture (Columbus, Ohio, 1987)Google Scholar.

14 This power was not granted specifically, but was judicially considered to be the logical outcome of the Basic Law — relying also on the American precedent of Marbury v. Madison 5 U.S. 1 Cr. 137 (1803). An enlarged bench of nine justices took part in the decision, each writing a separate judgment. See the case of Bank Mizrachi v. Migdal Kfar Shituft (1995) 49(iv) P.D. 221.

15 In November 1998, the prisoner's brother was found guilty of attempted bribes, but no charges were laid against the medical personnel.

16 The killing had been committed against a background of ongoing strife between neighboring shop owners—and arguments had been raised, which dissenting judgments partially accepted, of the action being in self-defense or in response to provocation. Shortly prior to publication of this article, the decision was handed down; the petition of the victim's family was accepted, the pardon was cancelled, and the convicted murderer was returned to prison. However, the Court's reasoning was based mainly on the problem of the false medical information, and not on the split verdicts.

17 The case is Dahan v. Minister of Justice H.C.J. 7443/96 (as yet undecided). The file number is H.C.J. 7443/96.

18 The role of custom in Israel is not clear since the enactment of the Foundation of Law Act, 1980, which formally broke the link with the common law.

19 Connecticut Board of Pardons v. Dumschat 452 U.S. 458.

20 Solem v. Helm 463 U.S. 277 (1984); see also C. Olsen, “The Requirement of Proportionality in Criminal Sentencing: Solem v. Helm”, (1985) 11 New England J. Criminal and Civil Confinement 243. See also Green v. Teets 244 F. 2d 401 (1957).

21 For an awareness of the increasing role of human dignity in constitutional issues even when, as in the United States, the term itself is not used in the constitution, see Murphy, W., “An Ordering of Constitutional Values”, (1980) 53 Southern California L.R. 745Google Scholar. He writes: “The basic value in the United States Constitution, broadly conceived, has become a concern for human dignity” (at 745). See also Cohn, H., “On the Meaning of Human Dignity”, (1983) 13 Is. Yrbk Human Rights 231Google Scholar, where he writes, “ … human dignity is the source from which human rights and liberties are derived … human dignity provides the causa as well as the ratio for all human rights legislation … human dignity is the goal to which the rule of human rights law aspires”.

22 See Ultimate Penalties, supra n. 13, at ch. 5, “Life Imprisonment and Human Rights”, 117.

23 These cases were decided in the District Court by the judge normally assigned to dealing with prisoners' petitions. The cases involved prisoners sentenced to life imprisonment for murder, who, after periods of around 15 years, had not yet been given a fixed sentence, either because of the harshness of their crime (kidnapping of a young boy, subsequently murdered) or the character of the prisoner (lengthy criminal record). The argument put forward was that it might be assumed that one day they would be given a reduction of sentence (from life to a fixed term) — since it was presumed that this would not be much more than thirty or even forty years, and since home leave was normally granted to prisoners after serving one-quarter of their sentence, it was pointed out that logically they should, after fifteen years, be entitled to home leave.

24 Sheleff, L., “The Importance of Pardon”, (1998) 44 HaPraklit 72Google Scholar.

25 See Leviticus 25, 7: “And you shall hallow the fiftieth year, and proclaim liberty throughout the land unto all the inhabitants thereof; it shall be a jubilee unto you; and ye shall return every man unto his family. A jubilee shall that fiftieth year be unto you”.

26 See, for instance, Moore, K., Pardons: Justice, Mercy and the Public Interest (Oxford, 1989)Google Scholar.

27 See recommendations of the Blatman Committee — chaired by a former State Attorney.

28 See supra n. 24, at 83-84.

29 See Sheleff, L., “Correction of Miscarriages of Justice”, (1994) 41 HaPraklit 346Google Scholar. Recently, there have been instances of allowing a re-trial in cases that had captured public interest. In one case (dealing with a group of young people, termed a gang by the authorities), the prisoners had served a ten-year sentence for a spate of arson attacks; and on re-trial, the prosecution acknowledged that the original evidence was tainted, and recommended their acquittal. In another case, a group of five people (all Arabs) had been convicted of murder and other serious crimes related to the death of a young teenager in Haifa in the 1980s. Earlier attempts to have a re-trial were rejected, but a change in the law facilitated a later decision by Justice Barak to allow a re-trial (in process at the time of writing). It should be noted that some reservations have been expressed as to the problematics of this upcoming trial, given the time that has elapsed since the murder was committed, with some key witnesses no longer alive. Several years ago I discussed this trial in the context of the controversial trial of Sacco and Vanzetti in the United States in the 1920s, and a number of mis-trials of Irish people in the United Kingdom. See my Hebrew article, “Security Pressures and the Criminal Justice System”, in Neuberger, B., ed., Democracy and National Security (Open University, 1996)Google Scholar. My opinion then — and now — is that the best way to dispose of this case, which has troubled Israeli public opinion for some time, would be by a grant of pardon to the prisoners. The relevant authorities, in consultation with the Attorney-General and Solicitor-General, would then have to decide whether this should be a “free” pardon.

30 In probably the best-known case, of Amos Baraness, the prisoner had insisted on a retrial, and not a pardon, but had been persuaded to accept the pardon, as his release from prison would facilitate his efforts to seek a retrial. Yet, despite many pleas and protestations, no retrial has been allowed. Even so, the crime of murder for which he was convicted was so serious that it is difficult to believe that a pardon allowing for early release would have been granted, were it not for the serious doubts as to the possibility of judicial error. It should be mentioned that, at one stage, one of his interrogators had been convicted of perjury as to the manner in which the confession was obtained (which would almost automatically have led to a retrial), but he was then found not guilty on appeal.

31 See comments on the importance of pardoning as a means of rectifying possible errors in a leading Israeli case, Reuven v. Ha-Moatzah Ha-Mishpatit (Bar Council) (1951) 5(i) P.D. 737.

32 Normally, courts of first instance sit as single judges, except in serious cases such as murder, where a three-judge bench is used.

33 Supra n. 24, at 98-101. As to similar issues, in terms of majority vote on constitutional issues, dealing with the nullification of laws, see my article, “An Entrenched Majority for Constitutional Issues — Not Just for the Legislature but also for the Judiciary”, (1997) 28 Mishpatim 387Google Scholar.

34 As a result of this case (Ben-Arie v. State of Israel 51(ii) P.D. 377), the Goldberg Commission was appointed in 1993 to investigate the validity of confessions and published its report in 1994. See also Kremnitzer, M., “Conviction Based on Confession — Is There a Danger in Israel of Convicting the Innocent?”, (1994) 1 HaMishpat 217Google Scholar.

35 In this case, the El-Abid case, the accused had confessed to the rape and murder of a young girl, and explained that he had buried the body in the municipal refuse dumping ground where he worked, and where he was seen that evening (El-Abid v. State of Israel 54(i) P.D. 673. However, even though in the course of a week, the dump was thoroughly searched, no body was found. After he was convicted in a two-to-one decision, and before his appeal was heard, the body was found in another place. It was then decided to have this aspect of the case retried — before the same judges, who came to the same two-to-one decision. The case was then taken to appeal as described, and then a further hearing was held, the consequence of which was to lead to his conviction on both counts, with its automatic life sentence for the crime of murder. This case has been critically described in an article to be published. See A. Porat and L. Sheleff, “Faults in the Criminal Process”, (forthcoming, in Hebrew).

36 In this particular case, the dissenting judgment had been that the elements of murder had not been proved, but that the accused was guilty of manslaughter, a crime for which the penalty may well have been about five years. However, the dissenting judge provided no reasoned statement for his decision. It seems that the correct approach by the appeal court should have been to return the case to the lower court, and request a fully reasoned dissenting opinion, so as to enable the appeal court to make a correct decision. Since the Supreme Court did not act in this manner, it seems clear that the only way to mete out justice, so that justice can also be seen to be done, is through a pardon.

37 See section in my article, “Examination of Cases After Change in the Law”, supra n. 24, at 91-93.

38 Sec. 5 of Penal Law (Amendment No. 39), 1994.

39 The Oslo Agreement, Annex 7: Release of Palestinian Prisoners and Detainees states, inter alia: “The third stage of release will take place during the permanent status negotiations and will involve the categories set out above, and may explore further categories” — indicating a willingness to discuss the extreme cases.

40 The Committee Against Torture in Israel v. State of Israel H.C.J. 5100/94 (as yet unpublished). This petition was heard with six others, submitted by various public bodies and some of those who had been interrogated.

41 See Radelel, M., Bedau, H. and Putnam, C., In Spite of Innocence: Erroneous Convictions in Capital Cases (1993)Google Scholar.

42 See Martinson, R., “What Works? Questions and Answers about Prison Reform”, (1974) 24 Public Interest 25Google Scholar.

43 Schafer, S., “The Proper Role of a Victim Compensation Scheme”, (1975) 21 Crime and Delinquency 45CrossRefGoogle Scholar; and Eglash, Albert, “Creative Restitution”, (1958) 48 J. Crim. L., Criminology and Police Science 619CrossRefGoogle Scholar.

44 Shuman, S., “Responsibility and Punishment: Why Criminal Law?”, (1971) 15 Am. J. Jurisprudence 25CrossRefGoogle Scholar.

45 Hadden, T., “Contract, Tort and Crime: The Forms of Legal Thought”, (1971) 87 Law Q.R. 257Google Scholar.

46 Greacen, J., “An Arbitration Approach to Criminal Justice”, (1975) 4 Law in American Society 16Google Scholar.

47 Durkheim, E., The Division of Labor in Society (New York, The Free Press, 1933)Google Scholar.

48 Sheleff, L., Social Cohesion and Legal Coercion: A Critique of Weber, Durkheim and Marx (Amsterdam and Atlanta, Rodopi, 1997)Google Scholar, chap. 6, “On Harms and Remedies”.

49 Braithwaite, J., Crime, Shame and Reintegration (Cambridge, Cambridge University Press, 1989)CrossRefGoogle Scholar.

50 See, for instance Smith, R., ed., Guilt: Man and Society (Garden City, N.Y., Doubleday, 1971)Google Scholar, especially Mead, M., “Some Anthropological Considerations Concerning Guilt”, at 117Google Scholar.

51 Massaro, T., “Shame, Culture and Criminal Law”, (1991) 89 Michigan L.R. 1880CrossRefGoogle Scholar.

52 Braithwaite, supra at 156.

53 Massaro, supra at 1943.

54 Auerbach, J., Justice Without Law? (New York, Oxford University Press, 1983)Google Scholar.

55 Ibid., at 16.

56 Tannenbaum, F., Crime and the Community (New York, 1936)Google Scholar.

57 Benedict, R., The Chrysantheum and the Sword: Patterns of Japanese Culture (London, Seeker and Warburg, 1947)Google Scholar.

58 In general, see Friedman, R., ed., Crime and Criminal Justice in Israel (Albany, SUNY Press, 1998)Google Scholar.

59 Till recently, there was a compulsory life sentence for murder. In 1995, the courts were empowered to impose a fixed term sentence in a number of specified instances, e.g., where the crime was committed by a victim of intra-family violence.

60 The concept of sulcha involves an expression of forgiveness. In general, see Boehm, C., Blood Revenge: The Enactment and Management of Conflict in Montenegro and Other Tribal Societies (Philadelphia, University of Pennsylvania Press, 1987)Google Scholar.

61 See Braithwaite, J. and Mugford, S., “Conditions of Successful Reintegration Ceremonies”, (1994) 34 British J. Criminology 153CrossRefGoogle Scholar. See also Zegers, J.B. and Price, C., “Youth Justice and the Children, Young Persons and Their Families Act, 1989)”, (1994) 7 Auckland Univ. L.R. 803Google Scholar.

62 See, for instance, Prairie, C.L., “Altering Course: New Dimensions in Criminal Justice — Sentencing Circles and Family Group Conferences”, (1995) Australian and New Zealand J. Criminology 79Google Scholar (Special Supplementary Issue on “Crime, Criminology and Public Policy, D. Dixon, ed.); Chief JusticeTsu, Tom, “The Powers of Decision- Making in Tribal Courts”, (1989) 31 Arizona L.R. 227Google Scholar.

63 In general, see my discussion in The Future of Tradition: On Customary Law, Common Law and Legal Pluralism (London, Frank Cass, 1999) ch. 15Google Scholar, “From Harm to Harmony” and ch. 16, “For Shame”.

64 Recently, some jurisdictions in the United States have introduced a converse approach—which might be labeled “bad time” — namely, instead of granting a remission of sentence for good behavior (“good time” in common parlance or colloquially known in Israel as “one-third,” the amount of the reduction), the prison authorities are empowered to add to the sentence, because of “bad” behavior by the prisoner. These laws raise serious constitutional questions, and have been challenged in the courts, thus far without success.

65 See Sheleff, “The Importance of Pardon”, supra n. 24. See also my article, “Punishment, Prisoners, Rights, and Pardons”, in Friedman, supra n. 58, at 265.

66 See supra n 43.

67 See Boraine, Alex and Levy, Janet, eds., The Healing of a Nation (Cape Town, Justice in Transition, 1995)Google Scholar; and special issue of University of Toronto Law Journal, “South Africa's Truth and Reconciliation Commission: A Symposium”, (1999) 49, at 311–445Google Scholar.