The shock is palpable. For those of us used to United States criminal justice as a baseline the decision seemed in explicable. Norway's prosecutors have decided that Anders Behring Breivik is insane and should not face criminal prosecution (read the AP report here). Breivik was arrested last summer after methodically gunning down scores of Norwegian youths and young adults on an Island after allegedly setting off a deadly bomb blast near government buildings in Oslo. Prosecutors, based on the evaluation of their own forensic psychiatric experts concluded that Breivik lives in a “delusional universe,” and should not be held criminally responsible. If their decision is approved by a judicial process, Breivik will go to a secure psychiatric hospital for at least three years, after which he could be released if found to be no longer a danger, rather than to a trial and imprisonment.
In the U.S. insanity is also a possible basis for dropping a prosecution or acquitting a defendant with a similar result, only it rarely happens and certainly not in high profile cases. Consider the on going prosecution of Jared Lee Loughner, who killed several people at a Tucson store last Spring and critically wounded Representative Gabrielle Giffords, and who everybody agrees was deeply psychotic, but where the prosecution is fighting to the keep the case on track for a criminal trial and possible death sentence.
By strange coincidence, yesterday also brought news that John Hinckley, who shot President Reagan in 1981, is seeking to leave a psychiatric hospital for visits of up to several weeks at his mother's home, more than 30 years after being acquitted by reason of insanity. The attempted assassination occurred as the nation was, partially led by Ronald Reagan, embracing mass incarceration, and news that Hinckley would escape "punishment" and "prison" led to outrage and massive shift in state and federal law to narrow the grounds on which a person may be acquitted by reason of insanity. Now even people who both prosecution and defense agree are and were deeply psychotic, and who killed in the midst of severe delusions, are likely to be convicted of murder and sent to prison for life or perhaps even executed (so long as they are not insane at the time of execution). In the meantime the suggestion that, Hinckely who has been in remission for decades and has apparently threatened no one since being hospitalized, be released is raising strong opposition from present and former prosecutors.
The contrast between the two nations should shock us. But the question is what kind of conclusion to draw. San Francisco Chronicle columnist Debra Saunders offers in vivid terms what I suspect many of my fellow citizens (and possibly even readers) think (read her column here):
So why do I think Oslo's chosen experts have decided that Breivik was insane? They're so sublime, they don't know how to recognize evil.
Saunders sees Norway as epitomizing the European embrace of human rights and its clearly arrogant and feckless commitment to humanitarian values like dignity,while America is clear eyed and sees what must be done to secure ordinary citizens from those that would harm them. In Saunder's universe, freely drawn from the nightmare world of US popular media, people like Norway's prosecutors are contemptible not just because they fail to protect their people but because they sympathize with criminals and reject American style harsh justice.
In AMC's zombie series "The Walking Dead," tensions build between an old-fashioned veterinarian farmer named Hershel Greene - who thinks zombies have a disease that may be cured someday - and a caravan of gun-packing refugees led by Deputy Rick Grimes. Because Hershel wants to protect the zombies he has hidden in his barn, he orders Rick and company to leave his property - even though leaving could make Rick, his family and friends easy pickings for the undead.
It's disturbing how self-congratulatory humanitarians can be willing to endanger the lives of others in order to maintain their worldview.
As a columnist Saunders often has the lonely task of defending conservative views in liberal San Francisco, but on this note she's singing with the chorus in California and thus her logic is worth a closer examination. Killers, or maybe all criminals, are like zombies, i.e., they are monsters who have forfeited all claim on our humanity. Monsters, they can never change their instinctual drive to kill innocent humans. Those who think they can change are not only pathetic, but dangerous themselves because they can use their power to stop righteous avengers from using violence or permanent imprisonment to incapacitate the monsters.
In its own way this is a view as distorted and distant from the reality as that of Anders Breivik; but it is driven not by hallucinations but by a culture of fear in the Golden State built up by a variety of social and political trends over the past four decades. The result, which shocked even the US Supreme Court in Brown v. Plata, is a hugely overcrowded and massive prison system that holds tens of thousands of seriously mentally ill prisoners most of whom were not receiving adequate treatment to control their disease.
In Saunder's AMC-based universe, monsters stand on one side and righteous law enforcers on the other. In between, hapless humanitarians keep preventing the righteous law enforcers from wiping out the monsters. In reality, security is more of a twilight zone where extreme efforts to punish and incapacitate our way to safety regularly backfire and where real security means having the courage to stand up for dignity. Consider San Francisco where Saunder's lives or at least writes from. There in 2008 a teenage girl was almost beheaded by a knife wielding man. To bad the law enforcers were not allowed to get to him first. But actually, they did have him. The girls family is suing the state. Was he released by some naive humanitarian parole board? According to Saunder's newspaper, the San Francisco Chronicle (read it here):
The suit claims Scott Thomas, who was suffering from bipolar disorder, was never treated during his months in solitary confinement in San Quentin. After he was released without supervision on May 18, 2007, Thomas randomly stabbed Loren Schaller, now 16, and 60-year-old Kermit Kubitz at a bakery near Miraloma Park.
Thomas, 26, who was sent to prison nine times for nonviolent crimes between 2000 and 2007, has been declared mentally incompetent to stand trial and is incarcerated at Atascadero State Hospital.
You can abandon humanity and dignity in the name of security, you just can't make anybody safe that way.
Cross-posted from Jonathan Simon’s blog Governing Through Crime.