State monopoly of 'permitted violation of human rights': The decision of the Supreme Court of Israel prohibiting the private operation and management of prisons

In: Punishment & society, Band 14, Heft 2, S. 131-146

Abstract

The emergence of private sector management of state prisons over the last 30 years has been controversial. It has been strongly argued that the administration of prisons is a core state function that, morally, should not be delegated. Proponents of this view contend that the State should directly manage its prisons even if it could be demonstrated that the privately managed prisons are superior to publicly managed prisons in achieving positive correctional outcomes or having less repressive regimes or being more sensitive to human rights. Hitherto, this strongly argued moral position has not been directly tested by litigation. In the case described in this article, a challenge to the proposed privatization of an Israel prison was challenged in the Israel Supreme Court. The challenge hinged on the meaning of the Basic Law of Israel which, it was argued, created a super-legislative constitutional right for prisoners to serve their sentences under the direct management of the State. The Supreme Court upheld this argument, in effect accepting that imprisonment is a core state function. It stated that all imprisonment per se contravenes Basic Law provisions relating to life, personal liberty and human dignity. To serve a sentence in a privately managed prison would be a further contravention of the Basic Law. Accordingly, the State should have a monopoly of 'permitted violation of human rights'. The article discusses the implications of this decision both within the domestic context of Israel's imprisonment standards and from the point of view of whether the decision has wider significance for the growth of private management of prisons in other jurisdictions.