The Effect of Punishment Guidelines on Judicial Decisions

Research Period: 2007-2011

Funding Agency: Israel Scientific Foundation (ISF)

Oren Gazal-Ayal (P.I.)
Gideon Fishman (P.I.)
Hagit Turjeman (C.I.)

Scientific Abstract:

Judicial sentencing discretion has been the center of debate and concern in the last few decades. Calls for limitation of this discretion led several countries to reform their sentencing laws, with the aim of reducing sentencing discretion, reducing unwarranted sentence disparity, and communicating the legislator's or sentencing commission's view of the proper sentencing policy.

These trends also had their impact in Israel. Criticism of the unfettered judicial discretion in sentencing combined with dissatisfaction with perceived judicial leniency led several groups to call for limitation of sentencing discretion. In recent years, an increasing number of bills proposing minimum sentences were introduced in the Knesset, and several bills have already become a law. More importantly, the Knesset is currently reviewing a governmental bill establishing a more general sentencing reform in an attempt to reduce and structure judicial sentencing discretion.

Empirical research from the United States show ambiguous results, and indicate that the effects of sentencing reform is substantially influenced by local factors in each jurisdiction. Studies also show that in many jurisdictions, limitations on judicial sentencing discretion transfer sentencing powers from judges to prosecutors instead of eliminating sentencing discretion. No study has as yet attempted to examine the effects of sentencing guidelines in Israel. As Israel is in the midst of sentencing reform, such a study is urgently needed.

A unique set of two Supreme Court decisions enables the examination of the effect of two different types of sentencing guidelines. In 2001 the Supreme Court held that subject to very exceptional circumstances, the appropriate sentence for hosting an illegal alien should be imprisonment that should not be deferred and could not be exchanged for public service. This ruling established a de-facto rigid presumptive sentence of a few months of imprisonment. Later, in 2006, the court relaxed this guideline, and allowed a less rigid sentencing rule for similar cases.

The proposed research aims to compare and examine actual sentences practices in the three different consecutive sentencing regimes that the court rulings created for Israelis hosting illegal aliens. Since such a comparison is rarely available, our study is likely to provide a unique lesson for the legislator and the Supreme Court in building a new sentencing regime. We expect our findings to yield vital information on the level of sentence disparity each system creates, the effect of the systems on judicial and prosecutorial sentencing powers, and the effects of different sentencing structures in a system that relies on guilty pleas.