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Prof. Mordechai Kremnitzer: The case of Jonathan Pollard: A legal
The case of Jonathan Pollard: A legal analysis
By Mordechai Kremnitzer – February 23, 2014
http://www.jpost.com/Opinion/Op-Ed-Contributors/The-case-of-Jonathan-Pollar=
d-A-legal-analysis-342333
Though he was neither charged with nor convicted of treason, there is no =
dispute that Jonathan Pollard committed serious offenses and that he =
deserved to be punished severely. However, it is doubtful that Pollard =
received a fair trial and whether the sentence imposed on him =96 life in =
prison without parole =96 was appropriate. Even if this were the case, it =
seems that at this stage Pollard=92s incarceration does not serve a rationa=
l =
purpose.
Did Jonathan Pollard have a proper and fair trial? Pollard signed a plea =
agreement, and the Justice Department stated during the trial that he =
cooperated with law enforcement authorities. In the plea agreement, the =
prosecution promised not to seek life imprisonment. While the prosecution =
did not explicitly request that Pollard receive a life sentence, it did =
equate his case with other cases in which life imprisonment was imposed, an=
d =
argued that Pollard=92s case was more serious. The prosecution thus implici=
tly =
requested =96 by clear and strong implication =96 to impose life imprisonme=
nt on =
Pollard, thus violating the plea agreement with Pollard. One of the three =
appellate court judges who heard Pollard=92s habeas corpus petition (not a =
direct appeal, as an appeal was never submitted due to ineffective =
representation) was convinced that the case was =93a complete and gross =
miscarriage of justice.=94
Was Pollard=92s life sentence an act of justice? The life sentence imposed =
on =
Pollard violates the principles of proportionality and equality before the =
law. It has become a pointless act of punishment.
Punishment and the principle of proportionality
One of the central principles of sentencing in all civilized nations is tha=
t =
the punishment must fit the crime. There are two decisive factors of Pollar=
d=92s =
crime that should determine his sentence. Pollard passed state secrets to a =
friendly country, and, therefore, the harm to US security is limited. In =
addition, he passed secrets with no intention to harm the United States. =
These factors preclude this case from being classified as one of the most =
serious cases of passing classified information, meaning that life without =
parole is not appropriate and the sentence imposed is disproportionate to =
the crime.
Pollard=92s punishment and the principle of equality before the law
Another principle that is shared by civilized nations is the principle of =
equality before the law, which mandates that similar cases be judged =
according to the same standard. If Pollard=92s punishment is compared to th=
e =
cases of other similar offenders, it stands out for its unusual severity: =
offenses that were more serious received more lenient punishments.
Even former US Navy seaman Michael Walker, who spied for no less than the =
KGB, was sentenced to 25 years of imprisonment and served only 15 years.
Is there a reason for Pollard=92s continued incarceration? Even if we were =
to =
assume that at the time of sentencing Pollard=92s punishment was proportion=
al, =
the amount of time that has elapsed since and the decline in Pollard=92s =
health render it disproportionate, and invite intervention by the pardoning =
authority.
Clearly, Pollard will not pose a threat to the security of the United State=
s =
if he is released. To the extent that his incarceration is intended to =
achieve the legitimate goal of deterrence, an incarceration for twenty-eigh=
t =
years is more than adequate to achieve this objective. Pollard=92s continue=
d =
imprisonment can be seen as punishment without substantive justification.
It is, therefore, pointless and borders on cruel treatment. Both the US and =
Israel share common values; one of them is the pursuit of justice. In the =
name of the shared commitment to justice, President Obama is humbly =
requested to put an end to Pollard=92s incarceration.
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D
Prof. Mordechai Kremnitzer is vice president of research at the Israel =
Democracy Institute and former dean of the Law Faculty at the Hebrew =
University of Jerusalem.
________________________________________
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