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Thursday, December 15, 2011


As has been widely reported in the press, the confessed killer in the Norway mass killings, Anders Behring Breivik, has been declared insane by court-appointed psychiatrists.  After extensive interviews, the psychiatrists concluded that he suffered from paranoid schizophrenia and lived in his own delusional universe. Although this finding could, in theory, be overturned, it is worth discussing how the psychiatric conclusion will affect how the case proceeds. It turns out that the Norwegian system is quite different from how the U.S. or other common law jurisdictions would handle the issue.

According to press reports, Breivik’s trial will be limited to determining whether he is, in fact, the killer, and will not address his culpability for the killings.  Assuming it is determined that he committed the killings (which he freely admits), he will be sent to a state psychiatric facility until he is no longer a danger, with both regular psychiatric and judicial review of this finding of dangerousness (at least every three years).  If both psychiatrists and judges agree that he is no longer dangerous, he could be released back into society.

A similar process is currently ongoing for John Hinckley, who has been in psychiatric care for decades after attempting to assassinate President Reagan.  His doctors believe that he can be released with supervision, and a hearing will be held next month to determine whether he can be released from his hospital.  Prosecutors and the Secret Service are both objecting to the plan.

But much else from the Breivik case is quite different from how a similar case would be handled in the United States.

Under typical common law criminal procedure, the defendant himself has to elect whether to plead not guilty by reason of insanity.  Of course, some defendants are so insane that they cannot rationally make this determination, and many defendants dislike the stigma of mental illness, and therefore decline to plead insanity even if it is in their best interest.  In Breivik’s case, for example, he was apparently displeased when he first learned of the psychiatric assessment.  But the interesting fact about Norway's procedure is that the issue isn’t for Breivik to decide.

Under the common law procedural system, how do we protect defendants who are so crazy that they refuse to plead insanity?  A judge can declare a defendant mentally unfit to stand trial, meaning that the individual is so mentally incapacitated that he or she is unable to assist in his own defense, so as to make the trial a meaningful judicial exercise.  This standard is much higher than the standard used to determine criminal insanity. If the judge makes this determination, the defendant is sent into psychiatric care until the defendant is cured (enough to understand the trial process), at which point the defendant is sent back to the court for the trial to be held, even if that takes years.

The key difference in the Norwegian system appears to be that if Breivik is cured he will be released back into society, not sent back to the court to stand trial for his crimes.  In that sense, it appears that the psychiatrists are not making a determination about his capacity to understand the trial, but rather are making a determination about his mental situation as it pertains to his culpability for the massacre.  In the common law system, the idea that this determination (criminal insanity) can be made outside of the trial process is utterly unfathomable.  It is a party-driven process.  The defendant elects to plead insanity, the prosecution most likely objects, and then the judge explains the standards for criminal insanity to the jury.  The jury has the final responsibility to determine, after hearing all of the facts, whether the defendant understood the nature and quality of his or her actions (depending on which standard is used).

The real conclusion here is that the Norwegian system is far less party-driven than the typical common law system.  The court takes a much more active role in structuring these decisions – even something as crucial as criminal insanity. 

Some Norwegians reacted with disgust when they learned that Breivik had been declared insane.  Having not examined the defendant, I don’t want to pass judgment on the merits of that decision.  But suffice it to say that in the United States this decision would be much less likely.  Unlike in Norway, where the decision largely rests with court-appointed psychiatric experts, American courts would leave the issue of criminal insanity to the jury, after hearing expert witnesses hired by each side. And jurors are notoriously stingy about granting an excuse based on insanity.