In relation to the United States, too, the legal situation must be sharpened. Following the Supreme Court's ruling in the Zadvydas v. Davis, 533 U.S. 678 (2001), the common perception is that at the end of six months of custody (detention) - a kind of "presumption of release" is created (presumption of release): a presumption that the continuation of custody is unconstitutional, and the burden is on the state to show that there are good reasons for continuing the custody. It is true, therefore, that in the United States a kind of initial upper threshold of six months and not a year was set. However, this comparison is inaccurate: in the United States, after six months at most, a "presumption of release" has arisen. If this presumption was concealed, the law and case law did not set an absolute upper limit. In contrast, in the framework of Amendment No. 4, it was determined Duty Release after one year of custody. Indeed, the figures in relation to the United States illustrate this point: 10% of infiltrators for whom a deportation order has not yet been issued (pre-removal order cases) have been in custody for more than three months and up to a year, and 3% have been in custody for more than a year (Donald Kerwin & Serena Ying-Yi-Li, Immigrant Detention: Can ICE Meet its Legal Imperatives and Case Management Responsibilities? (2009)). In contrast, of those in whose case a deportation order has been issued, more than 10% are in custody for a period of more than a year.
- I will return, therefore, to the question I began: What is the constitutional upper standard for custody? In the case of a person, a threshold of three years was brought before us. This threshold was invalidated, as stated, and I agree with that. This period by its nature constitutes a punishment in the criminal sense, even if it is not the intention. My colleague the President further noted in the matter of Adam that there is no impediment, in his view, "to enact a new law that will permit custody for a period significantly shorter than three years" (paragraph 5 of his opinion). I myself emphasized there that "the period of three years is extremely long" (paragraph 5 of my opinion), but it is possible to suffice with a more proportionate measure: "setting an upper threshold for custody that does not reach or approach the rate of 3 years" (paragraph 6 ibid.). In this spirit, the bill of Amendment No. 4 included a prospective provision:
"The reason that underpinned the Supreme Court's ruling [in the High Court of Human Justice] case that the arrangement was unconstitutional was that the arrangement involved a disproportionate violation of the right to liberty set forth inthe Basic Law: Human Dignity and Liberty. The arrangement proposed in this section, whose essence is to shorten the three-year period of custody that was invalidated in the judgment, and to apply a one-year period of detention to infiltrators who have not yet entered Israel, as well as to shorten the maximum period for examining asylum applications of those in custody, constitutes a more proportionate and balanced arrangement" (H.H. Government - 817, p. 124).