Sometimes Motives Don’t Matter: The Establishment’s Impulse to Protect (Allegedly) Corrupt Politicians Can Create Opportunities for Criminal Justice Reform

Since 2016, Israeli Prime Minister Benjamin Netanyahu has been investigated for a number of corruption allegations (see here and here). In apparent response, David Amsalem, a member of the Knesset (Israel’s parliament) from Netanyahu’s Likud Party, has proposed several bills which, if enacted, would help to protect the Prime Minister from these investigations (see here and here). Most recently, in June 2018 Amsalem presented a bill that would change Israel’s system of criminal appeals. Currently, the prosecution can appeal criminal verdicts, including acquittals; according to Amsalem’s so-called Appeal Bill, such appeals would require an appellate court’s permission, and this permission could only be given under special circumstances, and only for crimes punishable by ten or more years in prison. Amsalem, who denied that the Appeal Bill has anything to do with the investigations of Netanyahu, claimed that he proposed this bill because “[a] moral state doesn’t have to persecute a citizen who has received a sentence too light for its taste.” However, opposition Knesset members and commentators – many of whom usually support defendant-protective reforms to criminal procedure – have harshly attacked the Appeal Bill. The critics’ main (sometimes only) argument against the Appeal Bill has been that its purpose is to prevent the prosecution from appealing a possible acquittal of Netanyahu. As Tamar Zandberg, Chair of the opposition Meretz Party put it, “[t]his [government] coalition’s obsessive preoccupation with the legal authorities to protect a prime minister immersed in investigations is a mark of Cain for Israeli democracy.”

The hostility to bills that appear to be devised specifically to protect politicians from corruption prosecutions is definitely understandable, and the wide opposition in Israel to the Appeal Bill is therefore a natural reaction. Nevertheless, this impulse should be overcome when considering bills proposing criminal justice reforms with general application, and in particular bills strengthening individual rights in the criminal process. I do not claim that the Appeal Bill should be enacted into law, and I acknowledge that there may be some legitimate reasons to oppose limitations on prosecutorial appeals. However, generally speaking, we should not refrain from supporting criminal justice reforms just because their initiators may have had bad motives. Instead, every proposal of systemic reform should be considered on its merits, and, if found justified, be enthusiastically supported, despite its tainted origin.

  • First, and most importantly, a situation in which governments are willing to embrace criminal justice reforms for the sake of protecting leaders from corruption investigations might give those who support such reforms their best chance to pass bills promoting values of due process. Enacting any new legislation is hard, but approving legislation which strengthens individual rights in the criminal process is even harder. As promotion of due process is widely perceived to be at odds with public safety, many legislators – especially from the conservative side of the political map – would not support any such legislation. Israeli Knesset members who had at one time considered proposing bills similar to the Appeal Bill, for example, were quick to realize that they would not be able to get the support needed for successfully passing such a reform. Even if it is true that bills that would strengthen due process protections might impede a particular anticorruption investigation or prosecution, strengthening due process values may take precedence; after all, as Professor Stephenson noted recently in a different context, “some things are more important than corruption” – and that may well include the protection of suspects’ and defendants’ rights.
  • Second, in some cases – including this one – the threat that a criminal justice reform would pose to anticorruption efforts is rather small and speculative. The Israeli prosecution has yet to decide whether there is sufficient evidence to indict Prime Minister Netanyahu. The probability that Netanyahu would be indicted, stand trial, be acquitted, and have his acquittal appealed by the prosecution is so small that this possibility should not be in and of itself a basis for rejecting a general criminal justice reform.
  • Third, rejecting a reform only because it might help a particular suspect in corruption investigations (like Netanyahu) is no better, from a moral point of view, than advocating such a reform only because it will help protect that suspect. In many ways, such rejection reminds one of attempts around the world to create some type of “corruption exception” to due process, such as the failed 2004 attempt to pass in the Knesset bills proposing to sanction certain elected officials exercising their right to silence in criminal interrogations related to their duty. Israel’s then-Attorney General Meni Mazuz, now a Supreme Court Justice, opposed those bills, arguing that the right to silence is “a basic right given to every person brought to trial.” Just as basic rights should not be taken from individuals only because of their status as elected officials or the type of crime of which they are suspected or accused, legal changes that would confer stronger rights in the criminal process should not be opposed merely due to the suspect motives of their original promoters. Moreover, opposing the Appeal Bill solely on the grounds of its potential benefit to Netanyahu might lend credence to the claims that the ongoing investigations into his alleged misconduct are politically motivated.

While it may feel uncomfortable to embrace criminal justice reforms that were intended by their main proponents to protect officials who are suspected of corruption, there are compelling reasons to support such reforms if found justified on their merits.

3 thoughts on “Sometimes Motives Don’t Matter: The Establishment’s Impulse to Protect (Allegedly) Corrupt Politicians Can Create Opportunities for Criminal Justice Reform

  1. I agree with you that a law reform should be judged by its own merit and not by the circumstances that led to it. The reform itself will stay a long time after the original “hidden” motives for its legislation would be forgotten.

    I think some of the opposition to the Appeal Law proposal stems from the barrage of proposals that are being made in the Knesset, making a thorough analysis of each one impossible, hence leading to blanket opposition.

    • Thanks for the interesting comment, Guy. I agree that the relatively high number of recent bills proposing criminal justice reforms, in what seems to be the context of Prime Minister Netanyahu’s investigations, makes opposition members and others much more hostile to them, and they are therefore less willing to consider those bills on their merits. This is why I think that it is so important that these bills be viewed as rare opportunities for long-term improvements in the criminal justice system.

  2. Update for the blog’s readers:
    Israel’s government coalition decided on December 24, 2018 that early national elections will be held in April 2019 – more than half a year before the government was supposed to complete its term. Therefore, it seems that the Appeal Bill, which was already unlikely to be passed, will almost definitely not be promoted in the foreseeable future.

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