Do Sentencing Guidelines Increase Prosecutorial Power? an Empirical Study
Gazal-Ayal, Oren, Turjeman, Hagit, Fishman, Gideon, Law and Contemporary Problems
Traditionally, judges have had tremendous flexibility in sentencing. Offering judges maximum discretion in the sentencing process allows them to consider not only an offender's criminal history and the severity of the crime committed, but also the complex web of mitigating and aggravating factors present in each case and additional qualitative factors, such as a defendant's testimony or self-presentation in a courtroom.
When judges are empowered with more discretion, however, there is heightened potential for inter-judge variability in sentencing. In order to reduce sentencing disparities caused by individual sentencers, several countries and jurisdictions, most notably in the United States, have enacted laws reducing judicial discretion over the type and length of sentence to be imposed on a defendant for a given offense. The purpose of these sentencing laws is to introduce more formal, rational decisionmaking processes and explicit rules into the legal sentencing system in order to improve inter-judge consistency and reduce disparities. (1) Whether sentencing guidelines usually succeed in reducing unwarranted disparities is a highly debated question. (2)
Nevertheless, regardless of whether unwarranted disparities are reduced, it is often argued that sentencing guidelines and other limits on judicial sentencing discretion have a substantial side effect on the balance of power in court. Instead of mitigating the effect of personal discretion, the guidelines transfer much of the sentencing power and discretion from judges to prosecutors. (3)
Using a comprehensive set of data from Israel, we analyze sentencing outcomes for offenders convicted of aiding illegal aliens. These data are assessed to examine whether sentencing guidelines are likely to transfer sentencing power from judges to prosecutors in the Israeli system.
The next section is devoted to the discussion of the Israeli sentencing process and a description of the evolution of the sentencing law for aiding an illegal alien, including the Israeli Supreme Court's guiding decisions of Khatib and Abu-Salem. (4) Next, the literature on the effects of sentencing reforms on judicial and prosecutorial sentencing discretion is discussed. After making comparisons with American sentencing guidelines studies on the effect on judicial and prosecutorial discretion, we turn to the examination of Israeli sentencing practices during three different consecutive sentencing periods for this offense: pre-Khatib, post-Khatib, and post-Abu-Salem. This examination includes an analysis of the extent to which prosecutors and the courts circumvented the judicial guidelines in Khatib and their modification in Abu-Salem. Furthermore, we assess whether prosecutors gained additional sentencing control, previously vested in judges, after the Khatib guidelines limited judicial discretion in sentencing. The article concludes by exploring the legal and social ramifications of the findings.
A. Background on Sentencing Policy in Israel
Israel is home to approximately eight million people. Despite its small population, Israel has a relatively high incarceration rate: not including security prisoners, the incarceration rate is 205 per 100,000 persons--twice the rate of most Western European countries (5)--though still much lower than the incarceration rate of the United States. (6)
Israel's criminal justice system is similar to that of most common law countries, but with some important distinctions. After the police make an arrest, prosecutors decide whether to press charges. If a defendant is charged, he or she can negotiate a plea agreement with the prosecutor, plead guilty without an agreement, or elect a bench trial. There are no juries in Israel. (7) A public defense attorney is provided for unrepresented defendants in every case that might result in imprisonment.
There are three levels of courts in Israel. …