After the Verdict

The Challenges of Norwegian Law and Order


Wall of Roses

Today, Norway’s court ruled Anders Behring Breivik sane and guilty for last summer’s bombing of Oslo government offices, killing 8 people, and the massacre of 69 engaged at the Arbeidernes Ungdomsfylking (AUF) summer camp on Utøya. He will serve the maximum sentence of 21 years, but with an added provision of “protective custody” that allows the state to keep him incarcerated for life.

From the most loathsome, repugnant episodes in our existence inevitably arise elements for critique and correction, behaviors and approaches to applaud and encourage, and areas to struggle with but take seriously, especially when compared to the practices of other nations. Breivik’s trial has provided all three throughout the past year – all intricately interwoven with Norway’s justice system and the Norwegian people’s relationship to it.

Law is a living creature, which develops from and with a people over time. Although U.S. Supreme Court verdicts sometimes obscure this with their eternal return to “the words of the Founders” in the Constitution, even that venerable document bears within it evidence of later generations’ need to alter their predecessors’ judgments for a workable present and future (e.g., Amendments XV, XIX, XXIII, XXIV, and XXVI, all of which gradually allowed disenfranchised citizens the vote). Similarly, Norwegians will experience the legal fallout of the past year for some time to come, as they determine any adjustments they wish, as a society, to make to their institutions, procedures, and codes of law in the wake of the 22 juli tragedy.

Americans observing today’s outcome doubtless also will struggle – not least with emotionally allowing Norway to make its own decisions. The domestic terrorist attacks in Norway have resonance here as well, in acts both recent and decades distant, and thus evoke comparison of our systems and questioning of our own mores and institutions.

I suggest we investigate and sit with some of the issues, letting curiosity rather than anxiety guide us.

My selections by no means exhaust the challenges arising from the trial and verdict. The first two often emerged in my discussions with Norwegian friends over the past year (and the second provoked wonder, even humility, among many U.S. friends, as well as in me). The third, a more difficult area for Americans, has intrigued and tested me whenever talk of the verdict arose – and so it seems a good area of exploration.

Critique of Psychiatry: In Law and in Practice

Oslo Courthouse

The Oslo Tinghus (Oslo Courhouse)

In an op-ed piece for yesterday’s New York Times, Toril Moi and David L. Paletz recognized that “on one level, the trial is not just about the state of Mr. Breivik’s mind but [about] forensic psychiatry itself.” For nearly a year, Norwegians have contended with accounts of psychiatric evaluations, performed in person and at a distance, that have presented a conflicting and bizarre range of diagnoses – from paranoid schizophrenia to Asperger syndrome and Tourette‘s.

Throughout, they have also witnessed the sometimes irritable, largely self-satisfied, but hardly impulsive, involuntary, or currently disconnected specter of an unmedicated Breivik – a man who clearly and remorselessly detailed his thought, his planning, and his murders, demonstrating near-total self-absorption but none of the features the public has come to associate with psychosis: hallucinations, poor articulation, disorganization, or randomness in thought or speech.

This process has led to questioning psychiatry’s role in the court system. As Valeria Criscione explained in an April 2012 Christian Science Monitor report, “paragraph 44 in the Norwegian criminal code … states that anyone [who] at the time of the incident was psychotic or unconscious cannot be punished.” Furthermore, until this trial, psychiatric diagnosis had gone without challenge in the courts – and without much investigation.

This differs from the U.S. approach in many cases – as in the recent trial of Jared Lee Loughner – where the defendant’s mental illness at the time of committing a crime does not preclude a guilty verdict and sentencing. Hence, penetrating the Breivik trial has been the nearly intolerable notion summed up for The Observer‘s Peter Beaumont by one of the victim’s lawyers: “If he is mad, if he is not responsible, if he is not guilty then that means we will have to pity him.”

In addition to challenging Norway’s compassionate approach to mental illness in its legal code, the trial has exposed the inexactitude and subjectivity of psychiatric diagnoses generally. Psychology experts in Norway find themselves included among those uncomfortable with the way diagnosis has played out in court, as a recent Oslo Legeforenings (Oslo Medical Association) survey of over 1,400 doctors indicates. Over half of respondents thought the credibility of Norwegian psychiatry had been weakened.

This coincides with my own experience talking to Norwegians this summer. More than any criticism of the national police or condemnation of security measures in the Regjeringskvartalet (government quarter in Oslo), the psychiatric diagnoses of Breivik raised stern reactions. The ones performed “remotely” and seemingly randomly, after watching a few days of the trial, raised particular ire, as Norwegians, like Americans, are not prone to associate autism-spectrum and neurological disorders with criminality. Even as these assessments found Breivik “sane” – a view my friends agreed upon, not equating “abnormal” (or evil) with “psychotic” – they prompted considerable skepticism about the profession. (Had it been widely known, recent debate here over the forthcoming 5th edition of the Diagnostic and Statistical Manual of Mental Disorders would have raised that to “cynicism.”)

Finally, the refusal of the initial court-appointed psychiatrists to consider Breivik’s racist and political agenda stands on shaky ground, as the subject matter motivating the “delusions” should inform the diagnosis to some degree. In a 2001 feature for Vanity Fair, the late writer Gore Vidal probed the actions, investigation, trial, and execution of Oklahoma City bomber Timothy McVeigh – who was never deemed insane for killing 168 people, though he certainly has been considered abnormal, and evil, by a great many people. Vidal described his initial evaluation of McVeigh’s reasoning as follows:

For Timothy McVeigh, [Waco and Ruby Ridge] became the symbol of [federal] oppression and murder. Since he was now suffering from an exaggerated sense of justice, not a common American trait, he went to war pretty much on his own and ended up slaughtering more innocents than the Feds had at Waco. … [A]s my grandfather used to say back in Oklahoma, “Every pancake has two sides.”

Vidal didn’t find himself popular for his analysis at the time; and for all his eloquence, the extended analysis doesn’t make for pretty reading today. But as much as this may be the effect of the writer’s own personality (egotistical, paranoid to some degree, and decidedly obsessive), it also reflects the anxiety of our time, when via so many media channels we hear more and more of exactly what Vidal suggested: widespread anger and antipathy toward the federal government. And that, by itself, should not be deemed “insanity” – though when accompanied by the kind of narcissistic grandiosity demonstrated by a McVeigh or a Breivik, it may be tempting to judge it as such.

To be addressed at all, the tendencies first have to be acknowledged to exist. And perhaps, there, the psychiatrists were in denial.

The Wonder of Openness: Felleskap, Kjærlighet, Fred

Flowers of Oslo

Flowers in the wake of 22 juli. Photo by Jan Bohlin.

I dare to say no person aware of Norwegians’ response to 22 juli witnessed it without being emotionally rocked. In the United States many of us felt outright awe, especially after our own vindictive decade of war, public scandals over interrogation methods, constant “heightened” security alerts, and bitter polemic from commentators and certain politicians.

How could all these people gather in the face of such a tragedy, bedeck every corner of their capital with flowers, and vow to respond with fellowship (felleskap), love (kjærlighet), and peace (fred)?

One answer to that lies in an important distinction that most Norwegians appear to have made, and that most Americans never do. Norway has not interpreted kjærlighet as a compulsory and immediate positive emotional response toward the perpetrator. No one in Norway feels the need to sympathize with Breivik, nor to think he’s actually a good guy, or would have been if only life had gone a little differently. Indeed, the lawyer’s remark to Beaumont indicates that the dominant sentiment toward him is the opposite: a strong sense that he should not be pitied for what he chose to do.

Kjærlighet and felleskap instead have acted as a force to show compassion for the bereaved and to increase acceptance of the whole community – especially those who were the ultimately intended targets of Breivik’s ideological agenda. Thus, a positive emotional direction for activity replaces the isolating tendencies of anger. The latter is not repressed or converted into bravado but expressed honestly, if sometimes awkwardly, in defiance of the violator’s goals.

While the large gatherings in Oslo and the “rose marches” throughout the country provide the most obvious demonstrations of a peaceful solidarity with the whole community, less familiar aspects of this compassionate response in the wake of violence merit notice. Just days after the bombing and massacre, the majority of “historically ethnic Norwegians” embraced a broader notion of national unity to show more acceptance of recent immigrants – those whom one friend calls the “new Norwegians.”

The Anti-Racist Center had to extend their “Tea Time” campaign, in which Muslims opened their homes to non-Muslims for tea and conversation. Not only Oslo but Stavanger and Kristiansand showed interest early on. Project Director Timothy Ellis acknowledged that many non-Muslims may have felt guilty for an initial suspicion of Muslin terrorism; their response, however, was not to become defensive but to reach out.

Muslims demonstrated an identical urgency to reach out to their wider community. They joined Christians in lighting candles for the victims at the Domkirke, Oslo’s cathedral, the Sunday after the attacks; among them was the imam of the nation’s largest mosque. As a commentator noted in Aftenposten four days after the tragedy, “In the aftermath of that terrible Friday, all of Norway has mourned together. No one has asked who is Christian or Muslim, Sikh or pagan.”

Navjot Sandhu, chair of Oslo’s minority think-tank Minotenk, confirmed this view: in the absence of the lust for revenge, amid the mourning of a whole people, “Never have I felt more Norwegian than now.” For his part, Oslo mayor Fabian Stang told his Muslim hosts at a mosque that “the murderer was white, Christian and lived in my neighborhood, but none of you have branded me as a murderer. Thank you for that.”

National leaders held firm to the call for more openness and more tolerance. And throughout, they never lost an intimate sense of caring for the bereaved. Very personally, Prime Minister Jens Stoltenberg addressed what fellow citizens could do for those who had lost loved ones: “Bake a cake, invite them for coffee, go on a walk together.” In a time of collective mourning, the emphasis on the individual never flagged.

As Moi and Paletz have detailed, the court proceedings themselves demonstrated as high sensitivity to the agony of the victims’ families and the survivors as attention to the assurance of justice for the defendant. The state funded 174 court-appointed lawyers to represent their interests. Biographies, often including the victims’ hopes and ambitions, followed all autopsy reports. In addition to the testimony of survivors, five representatives among the victims’ families gave voice to their loss.

Thus, the legal system “sought to provide a measure of restorative justice,” Moi and Paretz conclude – one that did not avoid the horror of the acts but looked at them directly, asserting “that full acknowledgment of the truth of human suffering can have healing effects, for the victims and their families, and for a whole nation.”

No one is naïve enough to claim that racism has vanished from Norway, or that this time of immense suffering will produce a “happily ever after.” Thatis a challenge for Norway in the months and years ahead: to balance, as they did for generations after the Nazi occupation, the tenderness of felleskap and kjærlighet with a clear-sighted willingness to face the reality of suffering. To retain the values of a peaceful response of solidarity and the need for restorative justice.

It’s a promising beginning.

The Unknown: Rehabilitation and Incarceration

Interior in Halden Prison, Norway.

Interior of Halden Fengsel (Halden Prison), Norway. Photo by Justis- og politdepartmentet. Used under Creative Commons Attribution 2.0 Generic License, from Wikimedia Commons.

Whether like CNN and Vice, one sees Norway’s prison system as “progressive,” or like Forbes, sees it as “too soft,” one runs up against the fact of its recidivism rate. For 2010, this was 20 percent within two years of release. In the United States, measuring by three years, it was 43 percent.

Norway’s approach to prison emphasizes the rehabilitative aspect over the punishment, which alone makes the U.S. public uneasy. We could be taking our approach to incarceration directly from the title of Dostoevsky’s Crime and Punishment in our perception of the system. More, we have turned jailing offenders into a necessary part of the economy – what some have begun to call the “prison-industrial complex.” Despite an overall decline in violent crime in the United States since 1980, the prison population has tripled. According to attorney and author John W. Whitehead, 13 million people a year enter the system, which is approximately two and a half times the entire nation of Norway.

As Time magazine reported in 2010, the Norwegian penal system is guided by the principles “that repressive prisons do not work and that treating prisoners humanely boosts their chances of reintegrating into society.” Norwegian prison governors, in contrast to the corrupt, abusive Hollywood caricatures of U.S. wardens, believe in giving detainees “confidence through work and education.” The prisons’ architecture – as in the case of Halden, which Time dubbed “the world’s most humane prison,” and Bastøy, which the BBC called the “jewel in [the system’s] crown” – may avoid the blocky institutional feel of concrete and brick, and the landscapes include wide grassy areas for prisoner recreation. Prison guards eat and play sports with the inmates, and cells allow plenty of sunlight, pleasant furnishings, and televisions.

Bastøy, an island prison in the mouth of Oslofjord, houses 115 men incarcerated for murder, sex offenses, drug trafficking, and other crimes. Yet no inmate wears shackles or monitoring bracelets, and the property has no fences or armed guards. Prisoners all have jobs at which they work seven hours a day – farming, cooking, animal husbandry, wood chopping – for which they are paid a small amount equaling about $10/day. They have ample recreation time for football, hockey, fishing, sunbathing. The warden talks of the need to respect oneself first, to understand how to respect one’s neighbor.

Like most Americans and many others globally – including a number of Norwegians – I have struggled greatly with the openness of Norway’s prison system. While embracing rehabilitation as a value, the idea of prison as a place I might want to visit, even stay and live, is utterly alien to me; yet Bastøy is just such a place, and Halden sounds rather delightful as well, with its minifridge-stocked dorm rooms, acres of jogging trails through the forest, and scent of orange sorbet from the kitchen. After all, why not simply commit a crime to get such wonderful housing?

That’s the rub in a societal comparison. Many, if not most, in the United States have no access to these sorts of environments outside prison, much less in it. Nor do we have wages that keep us safely from the poverty line and its temptations, or an overall societal system assuring our health and provisioning (albeit one Norwegians pay dearly into, out of the wages a better economy, assurances of reasonable cost-of-living increases, and government watchfulness over funds for the health and pension system have thus far provided). When we can afford to pay for such environments, we know darn well it’s coming out of something most of us have worked for, and possibly at the cost of something else.

We are, in point of fact, envious.

At which juncture we might consider two undeniable facts of prisons everywhere. You are not free. And you don’t get to choose your neighbor or how to relate to him.

And that brings us back to Breivik.

Breivik will return to the Ila Prison outside Oslo where he has been housed, rather than one of these model facilities, and under stricter controls with regard to communication (which will be monitored in all forms), visitation, and socialization with inmates (which won’t be allowed, at least for quite a while). Already partially designed to house prisoners who could not be kept with others, Ila has been further remodeled with him in mind. Still, an American – and a number of Norwegians – looking at the type of cell Ila has may well feel steam building at the thought: no rusty iron bed, no dank corner with a tin toilet. He will have areas for exercise and work in his cell “complex,” and indeed, he looks to become the nation’s most expensive prisoner, with all the modifications and extra security required.

Thus, Breivik’s incarceration has within it a premise that many find difficult: that making the occasional exception to the rehabilitation value system – by directing the focus to punishment and restraint, both in the protective custody extension of the sentence and in the different procedures governing his treatment – will assure the stability of the whole.

That is part of the great lesson Norway faces with this verdict. In affirming the nation’s refusal to let Breivik’s actions change “how we do things,” it finds it must do the exact opposite; just as finding him sane is granting him the outcome he wanted.

The great unknown of the rehabilitative penal system will continue to spark debate in Norway, the United States, and other nations, and it will continue to provoke uneasiness. Here, above all areas, patience and curiosity seem the best approach, without any assumptions that systems can be adopted wholesale or adapted easily, without judgments about what is “right” or “wrong.” Clearly, there remains a lot to learn from the approach – much to watch and consider.

The greater unknown, for Norway, may be one the United States might have even more trouble with: can a nation accept exceptions to its value system – and what does it mean when it starts down that road?

Somehow, when all is said and done, I don’t envy Norwegians anymore on this front.

But I certainly wish them well.