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Israeli Supreme Court: Private Prisons Violate Human Dignity
"The very existence of a prison that operates on a profit making basis reflects a lack of respect for the status of (prisoners) as human beings," the Israeli Supreme Court found in invalidating a law authorizing the country's first private prison.
Like America, Israel is struggling under the weight of a devastating budget crisis and severe prison overcrowding. On March 31, 2004, the Israeli Knesset (i.e., legislature) responded in a very American way, by enacting Amendment 28 of the Prisons Ordinance, authorizing the construction and operation of an 800-bed private prison "in the prison compound south of the city of Beer-Sheba."
Privatization "was expected to bring about a savings for the state… estimated at approximately 20%-25% of the cost of operating a prison," according to an opinion that was submitted to a project committee. Savings over a period of 24 years, eleven months was "estimated at approximately NIS 290-350 million."
On March 16, 2005, an academic institution, a retired senior officer in the Israel Prison Service, (IPS) and an IPS prisoner challenged amendment 28.
On March 18, 2009, the Israeli Supreme Court barred the prison's operation, and on November 19, 2009 the Court issued a 208-page opinion, holding that Amendment 28 violates the liberty and human dignity of prisoners and, therefore, must immediately be set aside.
Apparently, Israel places a much higher premium on prisoners' human right to dignity than America does. "The right to dignity is a right that every human being is entitled to enjoy as a human being," the Court declared. "When a person enters a prison he loses his liberty and freedom of movement," the Court noted, but he "does not lose his constitutional right to human dignity."
"Imprisoning persons in a privately managed prison leads to a situation in which the clearly public purposes of the imprisonment are blurred and diluted by irrelevant considerations that arise from a private economic purpose, namely the desire of the private corporation operating the prison to make a financial profit," the Court found.
"Imprisonment that is based on a private economic purpose turns the (prisoners), simply by imprisoning them in a private prison, into a means whereby the . . . operator of the prison can make a profit," the Court found. "Thereby, not only is the liberty of the (prisoner) violated, but also his human dignity."
Importantly, the Court concluded that "the scope of the violation of a (prisoner's) constitutional right to personal liberty, when the entity responsible for his imprisonment is a private corporation motivated by economic considerations of profit and loss, is inherently greater than the violation of the same right on an (prisoner) when the entity responsible for his imprisonment is a government authority that is not motivated by those considerations." This is true, "even if the term of imprisonment that these two (prisoners) serve is identical and even if the violation of the human rights that actually takes place behind the walls of each of the two prisons where they serve their sentences is identical."
"When the state transfers the power to imprison someone, with the invasive powers that go with it, to a private corporation that operates on a profit-making basis, this action – both in practice and on an ethical and symbolic level – expresses a divestment of a significant part of the state's responsibility for the fate of the (prisoners), by exposing them to a violation of their rights by a private profit-making enterprise," the Court held.
"This conduct of the state violates the human dignity of the (prisoners) of a privately managed prison, since the public purposes that underlie their imprisonment and give it legitimacy are undermined, and, … their imprisonment becomes a means for a private corporation to make a profit."
The Court considered "arguments concerning the violation of human rights that has been caused by the operation of privately managed prisons in other countries, and especially in the United States." Ultimately, the Court was "of the opinion that the concerns raised ... are not unfounded and that there is indeed a concern that the manner of operating the privately managed prison will lead to a greater violation of (prisoners') human rights than in state managed prisons, because of the fact that the private prison is managed by a corporation that is a profit-making enterprise."
The Court acknowledged that judicial decisions of the United States, Britain, South Africa, the European Union and the European Court of Human Rights have not questioned the general constitutionally of private prisons, nor given "any significant consideration of the questions" raised. Even so, "in countries where prisons have been privatized the matter is subject to serious public debate, and there is also very critical literature regarding the experience that has been accumulated with respect to the operation of private prisons," the court observed. "The main concern raised in this critical literature is that economic considerations will give the private enterprise operating the prison an incentive to increase the number of prisoners, "extend their terms of imprisonment or reduce prison conditions and services provided ... in such a way that ultimately ... will lead to a greater violation of the [prisoners'] human rights than what is necessitated by the actual imprisonment," the Court noted.
"Amendment 28 is contrary to the basic principles of the system of government in Israel," the Court concluded. It "causes an unconstitutional violation of the human rights to personal liberty and human dignity that are protected" by Israeli law, and thus should be set aside. See: Academic Center of Law and Business v. Minister of Finance, Israeli High Court of Justice, Case No. HCJ 2605/05 (November 19, 2009).
Like America, Israel is struggling under the weight of a devastating budget crisis and severe prison overcrowding. On March 31, 2004, the Israeli Knesset (i.e., legislature) responded in a very American way, by enacting Amendment 28 of the Prisons Ordinance, authorizing the construction and operation of an 800-bed private prison "in the prison compound south of the city of Beer-Sheba."
Privatization "was expected to bring about a savings for the state… estimated at approximately 20%-25% of the cost of operating a prison," according to an opinion that was submitted to a project committee. Savings over a period of 24 years, eleven months was "estimated at approximately NIS 290-350 million."
On March 16, 2005, an academic institution, a retired senior officer in the Israel Prison Service, (IPS) and an IPS prisoner challenged amendment 28.
On March 18, 2009, the Israeli Supreme Court barred the prison's operation, and on November 19, 2009 the Court issued a 208-page opinion, holding that Amendment 28 violates the liberty and human dignity of prisoners and, therefore, must immediately be set aside.
Apparently, Israel places a much higher premium on prisoners' human right to dignity than America does. "The right to dignity is a right that every human being is entitled to enjoy as a human being," the Court declared. "When a person enters a prison he loses his liberty and freedom of movement," the Court noted, but he "does not lose his constitutional right to human dignity."
"Imprisoning persons in a privately managed prison leads to a situation in which the clearly public purposes of the imprisonment are blurred and diluted by irrelevant considerations that arise from a private economic purpose, namely the desire of the private corporation operating the prison to make a financial profit," the Court found.
"Imprisonment that is based on a private economic purpose turns the (prisoners), simply by imprisoning them in a private prison, into a means whereby the . . . operator of the prison can make a profit," the Court found. "Thereby, not only is the liberty of the (prisoner) violated, but also his human dignity."
Importantly, the Court concluded that "the scope of the violation of a (prisoner's) constitutional right to personal liberty, when the entity responsible for his imprisonment is a private corporation motivated by economic considerations of profit and loss, is inherently greater than the violation of the same right on an (prisoner) when the entity responsible for his imprisonment is a government authority that is not motivated by those considerations." This is true, "even if the term of imprisonment that these two (prisoners) serve is identical and even if the violation of the human rights that actually takes place behind the walls of each of the two prisons where they serve their sentences is identical."
"When the state transfers the power to imprison someone, with the invasive powers that go with it, to a private corporation that operates on a profit-making basis, this action – both in practice and on an ethical and symbolic level – expresses a divestment of a significant part of the state's responsibility for the fate of the (prisoners), by exposing them to a violation of their rights by a private profit-making enterprise," the Court held.
"This conduct of the state violates the human dignity of the (prisoners) of a privately managed prison, since the public purposes that underlie their imprisonment and give it legitimacy are undermined, and, … their imprisonment becomes a means for a private corporation to make a profit."
The Court considered "arguments concerning the violation of human rights that has been caused by the operation of privately managed prisons in other countries, and especially in the United States." Ultimately, the Court was "of the opinion that the concerns raised ... are not unfounded and that there is indeed a concern that the manner of operating the privately managed prison will lead to a greater violation of (prisoners') human rights than in state managed prisons, because of the fact that the private prison is managed by a corporation that is a profit-making enterprise."
The Court acknowledged that judicial decisions of the United States, Britain, South Africa, the European Union and the European Court of Human Rights have not questioned the general constitutionally of private prisons, nor given "any significant consideration of the questions" raised. Even so, "in countries where prisons have been privatized the matter is subject to serious public debate, and there is also very critical literature regarding the experience that has been accumulated with respect to the operation of private prisons," the court observed. "The main concern raised in this critical literature is that economic considerations will give the private enterprise operating the prison an incentive to increase the number of prisoners, "extend their terms of imprisonment or reduce prison conditions and services provided ... in such a way that ultimately ... will lead to a greater violation of the [prisoners'] human rights than what is necessitated by the actual imprisonment," the Court noted.
"Amendment 28 is contrary to the basic principles of the system of government in Israel," the Court concluded. It "causes an unconstitutional violation of the human rights to personal liberty and human dignity that are protected" by Israeli law, and thus should be set aside. See: Academic Center of Law and Business v. Minister of Finance, Israeli High Court of Justice, Case No. HCJ 2605/05 (November 19, 2009).
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