The case of Jonathan Pollard: A legal analysis

Mordechai Kremnitzer - February 23, 2014
http://www.jpost.com/Opinion/Op-Ed-Contributors/The-case-of-Jonathan-Pollard-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 – life in 
prison without parole – was appropriate. Even if this were the case, it 
seems that at this stage Pollard’s incarceration does not serve a rational 
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, and 
argued that Pollard’s case was more serious. The prosecution thus implicitly 
requested – by clear and strong implication – to impose life imprisonment on 
Pollard, thus violating the plea agreement with Pollard. One of the three 
appellate court judges who heard Pollard’s habeas corpus petition (not a 
direct appeal, as an appeal was never submitted due to ineffective 
representation) was convinced that the case was “a complete and gross 
miscarriage of justice.”

Was Pollard’s 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 that 
the punishment must fit the crime. There are two decisive factors of Pollard’s 
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’s 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’s punishment is compared to the 
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’s continued incarceration? Even if we were to 
assume that at the time of sentencing Pollard’s punishment was proportional, 
the amount of time that has elapsed since and the decline in Pollard’s 
health render it disproportionate, and invite intervention by the pardoning 
authority.

Clearly, Pollard will not pose a threat to the security of the United States 
if he is released. To the extent that his incarceration is intended to 
achieve the legitimate goal of deterrence, an incarceration for twenty-eight 
years is more than adequate to achieve this objective. Pollard’s continued 
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’s incarceration.
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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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