Courts, Prisons, Budgets and Human Dignity: An Israeli Perspective
8 Law Journal for Social Justice 135 (2017)
54 Pages Posted: 18 Jan 2018 Last revised: 24 Jan 2018
Date Written: January 11, 2018
Prisons tend to be at the bottom of the budgetary food chain. In many jurisdictions, political candidates will include in their platforms proposed budget increases for education or other socially favorable purposes. If additional money is found for the criminal justice system, it will be typically be earmarked towards increasing the number of law enforcement agents, and perhaps their pay, training and equipment. But improving the living conditions of murderers, rapists and other criminals? That is, most often, not politically appealing, especially when in some jurisdictions prisoners are barred from voting and cannot organize as a significant political force.
Enter the court system, the least politically accountable branch. Courts in liberal democracies often rule in ways that affect how prisons are run. The basis is typically constitutional grounds which are brought before a court in law suits of individual prisoners, and less frequently, in public petitioners’ actions aimed at affecting significant changes to the prison system as a whole. Such actions may have significant budgetary implications.
Courts are, of course, well aware of that and are therefore careful in their rulings. But sometimes they seem to come the conclusion that, despite all the cautionary considerations, intervening is precisely what they have to do, and that it their place to take the lead and change the harsh reality. This would seem to be the case in two Israeli Supreme Court cases that bookend this paper, where the Israeli Court took a much more pro-active role than is usual, even by its own, rather activist standards. Using two different tactics, both based on the constitutional right of human dignity to limit and delineate the State’s options regarding the holding conditions of prisoners – the Court has had – and is expected to have in coming years – a major effect on the prison system in general and on its budget in particular. These two, seemingly unrelated, landmark decisions, handed in 2009 and 2017 are discussed in this article. Between the two of them, the effect is to make the State spend more money on State prisons than it ever planned to. The first of the two, the Prison Privatization case (2009), created a worldwide precedent. Here, the Israeli Supreme Court emphatically declared prison privatization, legislated by statute by the Knesset, Israel’s Parliament, to be unconstitutional per se in Israel. Privatizing prisons, the Court declared, constitutes a violation of the constitutional right to human dignity of the prisoners, and as such an entirely impermissible avenue for the State. No other national court has held prison privatization unconstitutional.
Almost a decade has passed. The State did not significantly invest in the construction of new prisons or the improvement of existing ones. In June 2017 came phase two of the Supreme Court's activist role in forcing the State to increase the prisons budget, again based on human dignity. This time the price tag is going to be a lot higher. In the Prison Overcrowding case, the Israeli Supreme Court made very substantial concrete demands on the State regarding the prisoners it holds: the Court ordered the State to increase the cell room allotted to each individual prisoner in Israel within nine months to a minimum of 3 SM; this is to be further increased to 4 SM or to 4.5 SM (including the space of a toilet and a shower) within eighteen months.
Almost needless to say, the ‘price tag’ on this single holding is huge. The State has estimated it in its argument before the Court to be a whopping 2.7 billion NIS. If the current number of prisoners holds, the state will have to spend the equivalent of what it intended to spend in 45 yearly budgets at once, just to catch up. Even assuming that the State will be able to somewhat decrease the number of prisoners as discussed in Chapter III.D, infra, the budgetary effect is expected to remain very large. The two prongs now fully linked: in the Prison Overcrowding Case, the Israeli Supreme Court has considerably narrowed the options available to the political branches. Its 2009 decision precluded the State from using private actors and constructing private prisons by private, for-profit, operators; its 2017 decision mandates the State to dramatically improve the physical conditions of the exclusively state-run prisons, in terms of the space available to each prisoners. The result – the State can either start a massive release of prisoner so that fewer prisoners share the available space or start a massive building scheme to improve their living condition, in which there can effectively be no private sector participation. Ergo: the State must immediately budget and build prisons. QED.
Keywords: prisons, human dignity, privatization, incarceration, private prisons, Israel
Suggested Citation: Suggested Citation