The trial of Anders Breivik came to a close in Norway this week. In a twist on the usual positions, the prosecution argued in its closing statement that Breivik should be declared insane and sent to a psychiatric facility. The defense argued that Breivik should be declared sane and acquitted, though apparently Breivik even prefers a guilty verdict rather than a declaration of insanity.
The prosecution did not come out and directly state that Breivik was insane. Rather, the prosecution said that serious doubts remain about his sanity, and therefore he should be declared insane out of an abundance of caution. They argued that it was better to mistakenly place a sane individual in psychiatric care rather than place an insane individual in prison.
I find all of this deeply disturbing.
The first set of psychiatrists who examined Breivik concluded that he was insane and diagnosed him with paranoid schizophrenia. A second set of psychiatrists was then called in and they declined to find him insane. The judge in the case will make the final determination on this issue when it renders a verdict, probably not for several months.
Why would anyone conclude that Breivik is insane, and in particular a paranoid schizophrenic? The first set of psychiatrists, who obviously had a huge influence on the prosecution’s position, concluded that Breivik had a warped sense of reality. But what was their evidence for this conclusion? Breivik believes that Norway, and Europe in general, has fallen victim to an ethos of multiculturalism that is destroying the cultural, religious and ethnic identity of the continent and its people. He sees a particular threat from Islam, immigration, and ethnic tolerance. He is so worried about this general policy that he believed it appropriate to set off a bomb in Oslo, killing eight people, and then went to a political camp and murdered 69 young Norwegians. He believed – falsely -- that others across Europe with similar beliefs would follow suit with attacks of their own.
It is not clear to me that Breivik’s worldview is an indication of legal insanity. This is a common mistake, especially among non-lawyers, and one ought not to accept the judgments of psychiatrists when it comes to making a legal – not a medical – conclusion here. The first set of psychiatrists claimed that Breivik has a warped sense of reality, but it seems more accurate to describe him as having disturbing and extremist positions. He also holds values that most of us do not share, which is why he considered (and still considers) it necessary to do what he did. But that doesn’t make him legally insane.
There are many different legal tests for insanity, but most of them concentrate on whether the defendant has mental disease or defect that either (i) prevents him or her from understanding the nature or wrongfulness of his actions, or (ii) prevents him or her from controlling his actions. Some legal tests for insanity rely on the first prong and exclude the second prong.
In any event, Breivik’s actions aren’t really an issue of impulse control, so the second prong is moot. What matters is whether his mental condition prevented him from understanding the wrongfulness of his actions. He clearly understands the nature of his actions. The particularity of his situation is that he believes that he was justified in his actions. And the key reason for his subjective experience of justification is his extremist beliefs regarding multiculturalism and the danger it represents for Europe, not some defect of reason that prompts him to hear, say, whispers in the dark, the voice of God, or covert radio transmissions in his head. Instead, it seems to me that Breivik’s mental state stands in roughly similar position to a pro-life protestor who murders abortion doctors and believes that his actions are morally necessary. But a court would not declare such a protestor legally insane simply by virtue of his extremism; they would be classified as a culpable defendant with atypical values.
The key distinction here is that medical and legal tests for insanity are motivated by completely different aims. The medical profession seeks to classify individuals with specific disorders, consistent with its goal of treating and curing patients with specific mental defects. In contrast, the legal tests of insanity have no therapeutic rationale and instead seek to sort the culpable from the non-culpable and ensure that the non-culpable are not subject to the judgment of the criminal process. Consequently, there are individuals who might be morally culpable but could still benefit from the medical tools that psychiatry has to offer.
Also, underlying the Breivik case is a common mistake with regards to insanity, especially by individuals who aren’t trained in the criminal law. There is often the temptation to think that individuals who commit disturbing crimes must be mentally disturbed. This temptation ought to be resisted.