“How Minimum Sentences Benefit Offenders—The Case of Suspended Sentences”

Legislatures often require a specific or minimal sentence be imposed if certain conditions are fulfilled. This study shows how such rules might benefit defendants. Israeli law requires that a suspended prison sentence be activated if the offender is reconvicted of a further offense during the term of suspension. Hence, the suspended sentence becomes a sort of minimum sentence for a breach offense. Yet judges are allowed to prolong the suspended term if, among other things, the breach offense is minor and hence does not result in a prison sentence. Using propensity score matching to analyze a rich database of magistrate court cases, we find that courts use the exception much more often than expected and, more importantly, that judges refrain from sentencing breaching defendants to prison, even if the breach offense justifies imprisonment, in order to circumvent the requirement to activate the suspended sentence. Moreover, for severe offenses, courts are less likely to sentence an offender to prison if the offender is in breach of a suspended sentence, compared to a similar offender who is not in such breach. For such offenses, being in breach of a suspended sentence reduces the likelihood of a prison sentence. For some offenders, the suspended sentence thus becomes a benefit rather than a punishment.

Oren Gazal-Ayal served as the dean of the Faculty of Law at the University of Haifa between 2016-2022, and currently he is a visiting fellow in All-Souls College at the University of Oxford. He heads the Center for the Study of Crime, Law, and Society at the University. He is an expert in criminal law and procedure, in sentencing law and in law and economics. He is regularly published in leading journals, including Duke Law Journal, The Journal of Law & Economics, The Journal of Empirical Legal Studies and all the leading Israeli legal journals. His papers are frequently cited in decisions of the Israeli Supreme Court.

He serves as the vice chair of the public committee for the prevention of false convictions (headed by the former Supreme Court Justice, Yoram Danziger), a member of the Advisory Committee to the Minister of Justice for Criminal Procedure and Evidence Law (headed by the former Supreme Court Justice Neal Hendel), and the Committee for Alternatives to Prison, led by the Deputy Attorney General Amit Merary. Formerly he served as the head of the committee for the examination of drug offenses in the IDF and later as the head of the committee for the assessment of prosecutorial policies regarding unauthorized absence from service. Gazal-Ayal was also a member of several other public committees, including the public committee for the Examination of the Punishment and Treatment of Convicted Offenders (the Dorner Committee), as the coordinating member. He also held other public advisory positions, such as advising the Knesset, the Attorney General, and the Military Advocate General.  He initiated a reform in alternatives to criminal proceedings, which was subsequently legislated by the Israeli parliament (the Knesset) in 2012.

Gazal-Ayal has won several prizes for his research, including the Minister of Public Security Prize (twice: 2002, 2008), the Dusty and Ettie Miller Prize for Outstanding Young Scholar (2008), the Cegla Prize (2008) and the Fatal Prize for excellence in Research. He also won several prestigious and competitive research grants from, among others, the Israel Science Foundation (ISF, three times) and the German Israeli Foundation (GIF).

Gazal-Ayal has been a visiting scholar and visiting professor in universities around the globe, including Oxford University, Worcester College (2019), NYU law school (1999), Connecticut law school (2004), Michigan Law School (with Fulbright, 2004-5), the Max Planck Institute in Freiburg (2007) and Aix-Marseilles (with Erasmus Mundus Grant, 2008). In 2009-2010 he served as the Israeli Law and Economics Association president. Gazal Ayal was a member of the Israel Young Academy and the Global Young Academy, and based on the nomination of the Israeli Academy of Sciences, and was selected by the IAP – The Global Network of National Science Academies, as one of 55 “Outstanding Young Scientist” and took part in the New Champions 2010 meeting of the World Economic Forum Summer Meeting (the “Summer Davos” meeting).