Israel Matzav

Israel to release terrorists with blood on their hands if they promise to be good?

Prime Minister Ehud K. Olmert's chief negotiator for terrorist releases Ofer Dekel is in Cairo on Thursday morning where he is meeting with Egyptian intelligence chief Omar Suleiman over the exchange of terrorists for kidnapped Israeli soldier Gilad Shalit. While most of the reports here have focused on the gap in the numbers demanded by the 'Palestinians' and the numbers proposed by Israel (which are significant), both the JPost and Arutz Sheva are citing an Israel Radio report that indicates that Israel has agreed to release terrorists with blood on their hands, like the one pictured above, provided that the terrorists agree to stay out of the 'Palestinian territories.' Arutz Sheva even puts the number of terrorists to which this condition is applicable at 150, while the JPost cites a report in the 'Palestinian' daily al-Hayat which claims that the Egyptians are actually opposed to placing conditions on the terrorists' release!

Of course it's outrageous that Israel would even consider releasing terrorists with blood on their hands, especially if they are going to return to terrorist activities. I discussed the bad choices Israel has in the Shalit case (and the Goldwasser and Regev cases, which I will treat in a separate post today) at length here. But I'd like to introduce one other factor into the discussion.

Nearly 28 years ago, I took a course in Criminal Law as part of the requirements for law students at NYU (at the time, and I assume today). The very first case we read was United States v. Bernard Bergman. For those of you who weren't around in the 1970's, Bergman was an elderly Orthodox Rabbi who was convicted of defrauding the US government of millions of dollars in medicaid money in the 1970's. What we actually read was the judge's sentencing memorandum. Bergman was represented by Alan Dershowitz, who argued that no purpose was to be served by having an aging rabbi who could cause no one any further harm spend time in jail. As a result, the judge, David Frankel, wrote a lengthy memorandum in which he discussed the justifications for punishment in a civil society. There's a good summary of that memorandum here. (For those with Lexis access, the original decision may be found at 416 F. Supp. 496 (S.D.N.Y. 1976)). The bottom line is that punishment is intended to provide general deterrence to society, i.e. that if people see that - for example - committing terrorist acts results in spending the rest of one's life in jail, one might be deterred from committing terrorist acts. But if people believe that they will shortly or eventually be freed from jail even if they murder innocent people, there is no deterrence to committing terrorist acts.

Terrorists with blood on their hands cannot be freed because freeing them will encourage other terrorists to believe that they can murder Jews without being punished. In that light, freeing terrorists with blood on their hands, even if they promise (and even if they keep their promise) not to return to the 'Palestinian territories,' undermines the entire justification for punishment in the criminal justice system.

posted by Carl in Jerusalem @ 10:48 AM