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Sunday, June 24, 2012

Crazy Talk in Norway

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.


Stian Øby Johansen said...

The only catch though, is that Norway does not use the concept of "legal insanity". Our criminal law expressly relies on the medical principle, i.e. that a medical state of insanity ("utilregnelighet") at the time when the act is committed is enough to acquit. Therefore, there will usually be one court-appointed team that decides the question of sanity.

However, in this case, for the first time in history, a second team was appointed. Thus we get the tricky evidentiary issue: Must sanity be proven beyond reasonable doubt?

The prosecution argues that this is the case, due to the fact that sanity is one of the four requirements that must be fulfilled for criminal conviction. The defence argue otherwise. Legal scholars are split, but most argue that the evidentiary requirement for sanity is high - but not necessarily "beyond reasonable doubt".

Jens David Ohlin said...

Thank you for your comment -- you are obviously observing the trial very closely. This is an extremely helpful intervention.

I have some questions. Is the notion of utilregnelighet really that different from how the issue is dealt with in the US? If the term means mental incapacity, then plenty of US jurisdictions use an insanity test that requires that the impairment be caused by a mental disease or defect, with deference given to the medical profession to define what constitutes a mental disease or defect.

In other words, insanity per se is not really a contemporary medical classification. Modern psychiatry classifies individuals as suffering from discrete mental conditions, codified in the DSM, but which patients among these meet the standard for mental incapacitation is, at heart, a legal question, even if the testimony comes from psychiatric experts. That being said, different legal systems have different levels of deference to psychiatric experts on this question, and it sounds as if Norway is on the most deferential side of the spectrum.

How does this description comport with your understanding of the trial process in the Breivik case? Can you tell me more about how the court decides the issue of "utilregnelighet"?

Let me know. Thanks.

Stian Øby Johansen said...

In case you were wondering, I am a Norwegian that has been trained in both domestic and international criminal law.

In short: yes, the issue is really dealt with that different in Norway. To my knowledge Norway is the only country that follows what we call "the medical principle". I will explain this principle, but first I wanted to touch upon some of your questions.

Firstly, i used the term "insanity" loosely. That term does not exist in our criminal code. The norwegian criminal code § 44 is worded as such: (my translation) "He who at the time the act was committed was psychotic or unconscious should not be penalized". It is thus the question of whether the accused was psychotic that is decisice for criminal punishment.

Secondly, whether someone is psychotic is a purely medical question. To emphasize, there is no two-step test as most legal systems employ. Rather, as the renowned Norwegian criminal law theorist Johs. Andenæs writes (my translation again): "If a medical diagnosis of psychosis is established, [utilregnelighet] is also established. There is consequently no need to ask whether there is a connection between the mental state and the criminal act."

The argument for this "medical principle" is complex. For one, we can never be sure whether an act is motivated by insanity. The mere possibility might be a good enough argument for not reacting with something as serious as criminal punishment. On the other hand, there are several good arguments against a "medical principle", as you have already pointed out. Andenæs (Alminnelig Strafferett, 5. ed at 305-306) discusses this at length in his book, and concludes that "our system has functioned in a satisfactory manner", although highlighting the important counter-arguments.

In conclusion I should add that this is a conscious choice of the legislator. Thus, deviating from the "medical principle" is not an option for the Oslo District Court.

Jens David Ohlin said...

Fascinating system. If I understand you correctly, this means that a defendant who is psychotic because he thinks the CIA is trying to poison him, but by coincidence happens to rob a bank out of greed to get money to buy his girlfriend a present, and admits that he knew that this is wrong, would not be subject to criminal punishment. Quite unique.

Jens David Ohlin said...

P.S. Of course, none of this changes my initial reaction that his extremist beliefs are not good evidence of psychosis. In that belief I am apparently in the same company as the second psychiatric team.

Stian Øby Johansen said...

1) Pretty much, yeah. I guess the idea is that treatment is more appropriate than punishment. However, one must also remember that forced hospitation is not that different from imprisonment, at least in the Breivik case. The question is pretty much just how his cell is to be furnished...

2) I agree. Even though ICD-10 (the diagnosis system used in Norway/europe, similar to the DSM) does not seem to distinguish here.

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