Pampering the Oslo Killer

How does a country that believes society is responsible for all crimes punish a monster?

On March 5, public prosecutors finally served a formal indictment against Anders Behring Breivik, who on July 22 of last year parked a car containing a 950-kilogram homemade bomb with a seven-minute fuse outside the main government office building in Oslo – which, when it exploded, ended up rocking much of the downtown area and killing eight people – then drove out of town, took a ferry to the island of Utøya, where the annual Labor Party youth camp was underway, and, dressed in an outfit that was intended to resemble a police uniform, used a semi-automatic Ruger Mini 14 .233 caliber rifle and a semi-automatic Glock 9mm pistol to carry out an hour and twenty-minute shooting spree that resulted in 69 more deaths.

Two psychiatrists who were directed by the court to evaluate Breivik after his arrest issued a report last November diagnosing him as paranoid schizophrenic and concluding that he had been psychotic at the time of his crimes and therefore officially “criminally insane,” which means that he is subject not to punishment but to long-term medical treatment.  Owing to the widespread criticism of the psychiatrists' report, the court asked two other doctors to perform their own evaluation of the murderer; their report is still in the works.

In the meantime, however, we have the indictment.  It charges Breivik with terrorism and, in line with the conclusions of the November report, calls for him to be committed to a mental-health facility for appropriate psychiatric treatment.  (Depending on the conclusions of the second report and the evidence that emerges at the trial, it is still possible for the prosecutors to ask for imprisonment rather than treatment.)

Perhaps anticipating public criticism, prosecutor Inga Bejer Engh has said that when formulating an indictment she and her colleagues “are required to make an assessment on the basis of available evidence. This means that we must make up our minds as to whether there is any justification for punishment.  This is an important part of the prosecuting authorities' job.  One is not supposed to place oneself in the position of a judge.  As things stand now, there is no justification for punishing him.”

She's right: under Norwegian law, there isn't.  And that's the rub.  Everyone in the country, with good reason, wants this guy locked up until he dies.  But there's simply no precedent for the present situation, which, among much else, does a great deal to illuminate the philosophy that underlies Norway's judiciary, its penal system, and its psychiatric establishment alike, and exposes their not unrelated inadequacies.

First, the judiciary.  Its founding assumption is that society is ultimately to blame for every crime, and that to put people away for a very long time is itself a terrible crime.  Therefore, sentences are legendarily lenient.  The most a “sane” perpetrator can get for 77 murders is 21 years in jail (although prosecutors may then request extensions at five-year intervals); a person considered to have been insane at the time of his crime can in theory be held indefinitely, although if doctors decide he has been “cured” he can be released at any time.  It is standard procedure in Norway for convicts, including perpetrators of the most heinous crimes, to be given a few days off now and then, so that they can go visit their families and engage in other such wholesome activities.  Though such an option will presumably be off the table for Breivik, his monstrous acts and their impact upon the nation have underscored just how far Norwegian law falls short of realistically addressing the scale and nature of his offenses.

Second, the penal system.  It is considered important in Norway to treat prisoners not just humanely but with a degree of respect and dignity that some of us might consider excessive and inappropriate.  One consequence of this is that, compared to some of the dorm rooms I've lived in and hotel rooms I've stayed in, your average Norwegian prison cell counts as luxury accommodation.  Since July 26 Breivik has had three cell rooms at his disposal.  In one of them, according to VG, “he can rest, sleep, and watch DVDs on TV.  In another, he can work on a PC without an Internet connection. In the third, there is training equipment and weights, where he can work out.”  (How much would that go for in Manhattan?)  In November it was reported that beginning on December 12, Breivik would have access to newspapers, radio, and a TV that gets about fifteen channels. He's also allowed to receive mail, which has included love letters and marriage proposals.  Again, these reports of Breivik's frankly rather pleasant-sounding lifestyle in lockup have helped highlight the immense disproportion between Breivik's transgressions and his “punishment.”

Finally, there's the Norwegian psychiatric establishment, with which, owing to my involvement in the care and treatment of a close friend or two, I happen to have a good deal of familiarity.  I have, let it be said, met some highly admirable doctors, nurses, and orderlies.  I have also encountered, time and again, an almost robotically bureaucratic mentality that manifests itself in a variety of ways – a general lackadaisical attitude, want of urgency, and unimaginativeness; a stubborn disinclination to entertain valid alternatives to obviously unsuccessful approaches; and a misguided notion that putting reasonable restrictions on patients in order to prevent them from doing harm to themselves or others is an unforgivable violation of their rights, dignity, and personhood.  (So it is that raging, violence-prone psychotics who have been forcibly committed are, for example, allowed out to go on daily walks.)  I know that none of this is unique to Norway, but the problems seem to me considerably more exaggerated here than in, say, the U.S.

It is this last assumption – that putting reasonable restrictions on patients is some kind of crime – that is particularly challenged by the case of Breivik.  Nobody wants to see this guy on the loose.  Yet even the most “high-security” psychiatric wards in Norway are laughable in their lack of security.  Any motivated patient could escape from any of them with relative ease – because the very concept of security, real security, is, consciously or not, perceived, culturally and institutionally, as morally offensive.  Better to let people in the clutches of utter insanity slip out and do harm to themselves than keep them closely guarded and work as hard as you can to help them get better.  What we are dealing with here, I have gradually come to understand, is a profound lack of individual responsibility masquerading as exquisite societal sensitivity.

As it happens, the authorities have pretty much admitted that no psychiatric facility in all of Norway is equipped with the kind of security features necessary to ensure that Breivik won't escape.  Hence it was reported on January 24 that one of the options being considered is – no kidding – constructing an all-new “one-man hospital” on the grounds of Ila Prison, just for Breivik.  Since Norwegian law dictates that convicts who have been diagnosed with mental disorders must be held in hospitals and not in prisons, officials have reportedly been looking into whether the installation of Breivik in a hospital built inside prison walls would be legally permissible, or whether the government would have to ask the parliament to pass new legislation to allow for this special case.

Such are the considerations that confront Norwegian officialdom – and Norwegians generally – as the trial of Anders Behring Breivik approaches.  It will, to say the least, be interesting to see how all this plays out as the developments of the next few months shine an increasingly bright light on the system's inherent contradictions and – yes – absurdities.

This piece has been corrected. The author thanks Alvaro for noticing the error.

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