In the Public Square

LAPA Graduate Associate wins important decision in Israel Supreme Court

Yael Berda sucessfully challenges prison privatization law

Yael Berda, a human rights lawyer, who is also an active member of the Law Engaged Graduate Students and a Ph.D. candidate in Sociology, prevailed in a challenge to void a law allowing the privatization of prisons in Israel.  With three co-counsel (Barnea, Michaeli and Wasserman), Berda secured an 8 to 1 decision written by the President of the Israeli Supreme Court, Dorit Beinisch.  Justice Beinisch delivered LAPA’s Donald S. Bernstein '75 Lecture at Princeton in April 2009.

In yet another link to Princeton, Yael asked Professor Michael Walzer of the Institute for Advanced Studies to provide an expert opinion, which was embraced by the high court.  “This is a landmark opinion written by a courageous judge,” Berda stated.  “The court declared that allowing private corporations to engage in punishment and law enforcement is unconstitutional and a severe blow to the rule of law in a democratic regime.”

In his submission to the Court, Michael Walzer wrote:

The problem of prison privatization is that it illegitimately exposes the prisoners to private or corporate purposes, and it sets them at some distance from the protection of the law. The critical exposure is to profit-taking at the prisoners’ expense, and given the conditions under which they live, they are bound to suspect that they are regularly used and exploited. For aren't the purposes of their private jailers different from the purposes of the courts that sent them to jail? All the internal rules and regulations of their imprisonment, the system of discipline and reward, the hundreds of small decisions that shape their daily lives, are open now to a single unanswerable question: Is this punishment or economic calculation, the law or the market?

In this case, the state gives up on what it cannot give up legitimately, which is its prerogative to punish, or use coercive force against violators of the law. Since incarceration is part of the process of criminal justice and stems directly from decisions of the court, private prisons may put in question the legitimacy of the court decisions as well.

The case is Human Rights Department Ramat Gan College of Law & Shlomo Twizer v. Minister of Finance, Minister of Internal Affairs, A.L.A Management Corporation, Ltd & The Israeli Knesset, HCJ 2605/05.  An account from Haaretz is at  The English translation is available here.