Norway's Dilemma: How to Punish Breivik — and Remain Liberal

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Fredrik Varfjell / Pool / Reuters

Anders Behring Breivik stands next to one of his lawyers in a courtroom in Oslo on May 25, 2012

Grete Faremo jams her office door open in the new Justice Ministry to the north of Oslo. Since moving across town in the wake of the car bomb that destroyed much of the previous headquarters last July, it has a nasty habit of closing on her. As a metaphor for Norway's open-and-shut democratic institutions, and its transparent guarantee of the rule of law, it is neatly persuasive. But, as Justice Minister, Faremo must deal with two things that may be mutually exclusive: upholding Norway's proudly liberal judicial system and tinkering with it enough to make sure the man who blew up her last office is not only never released but also does not get to propagate his views.

Anders Behring Breivik, 33, has admitted to detonating the bomb that mangled the government complex in the center of Oslo, killing eight, then driving to the nearby wooded island of Utoya, where he gunned down another 69 people, mostly teenage members of the Labor Party's youth wing. His guilt is not in doubt. Breivik is on trial for his sanity. Whatever the outcome, Norway faces a devilish task in maintaining adherence to its liberal values while ensuring a severity of sentence to articulate a popular demand for justice.

Breivik's defense is structured around demonstrating his sanity and avoiding the compulsory mental health care, which the gunman fears will delegitimize his violently anti-Islamic cause. If he is found sane, he will face a maximum punishment of 21 years behind bars. But Breivik has no illusions that he will ever be a free man. The rolling five-year extension, which can be applied if he is still considered dangerous after his jail term has expired, has already rendered this sentence little more than a guideline. Instead the gunman is set on using his notoriety and Norway's rules on freedom of expression for prisoners to continue propagating his views.

Geir Lippestad, Breivik's defense attorney, says that should he serve time in prison, his client intends to write a book and become a pseudopolitical figure. Helje Solberg, editor of VG, Norway's biggest daily newspaper, insists the mainstream media will not allow Breivik a platform to air his views. But there are no laws to prevent him from doing it. Case in point: until Breivik came along, Varg Vikernes was Norway's most notorious criminal, having burned down at least three churches in the early 1990s and murdered his metal bandmate Oystein Aarseth in a frenzied knife attack. Even after conviction, however, he produced two albums, published a book, Vargsmal, wrote several far-right magazine articles and is said, though he denies it, to have founded the Norwegian arm of the pan-European neo-Nazi organization, the Heathen Front — all from his prison cell.

With the trial still under way, Faremo refused to discuss the leaks that suggest her department is preparing to sanction a crackdown on prisoners' media rights. But this only applies if Breivik is considered mentally competent. The more pressing problems will be created if he is considered insane.

The five judges who have to rule on his mental health are already juggling two contradictory psychiatric reports. The first, delivered to the court in November, concluded that Breivik was a mentally incompetent, psychotic, paranoid schizophrenic. The second, commissioned after widespread criticism of the original tract, reported in April that he was antisocial and narcissistic but perfectly sane.

Psychiatry holds a powerful position in Norwegian criminal justice. Norway is one of the countries where a mentally incompetent person cannot be punished — even if his crimes are unrelated to his psychosis. Candid about the need to address this in the wake of the July 22 case, Faremo has set up a commission that will seek to prevent the nightmare scenario that Breivik is hospitalized, then "cured" and released. She says, "We need to go into the penal code. We have a long history of saying that an insane person cannot be punished. But we have not dealt with the issue of whether we let the diagnosis play that crucial a role." The commission will report in August.

By then, a new Health Department law creating a secure hospital inside Oslo's maximum-security Ila Prison will already be on the statute books. Breivik is set to be sentenced on July 20. The law, tabled by Minister of Health Anne-Grete Strom-Erichsen on May 11, will be in place before then. In almost any democracy, such a swift legislative turnaround would be remarkable. In Norway, where a torturous process of consultation and committee means legislating usually takes years, the speed seems indecent. The Bar Association is furious.

Psychiatrists are equally so. Robin Kass, the Health Ministry State Secretary, insists the new law, which also limits access to media as well as introducing the right to use wiretaps and strip searches inside psychiatric hospitals, addresses long-standing security concerns. But there is no doubt whose circumstances the new law, known colloquially as lex Breivik, is aimed at addressing. Thor Kvakkestad, a veteran criminal psychiatrist, says the location of the institution inside the high-security prison would help Norwegians who think of hospital as a soft option to feel justice is being served. But he is more concerned about a clause that requires the psychiatrist in charge to take advice from a senior police officer when the three-yearly issue of assessing the patient's location and sanity is raised.

Ostensibly, says Kvakkestad, the police input would be strictly advisory and relate only to the physical threat an inmate would face from people outside the unit. In reality, he thinks, because of the political pressure in a case like Breivik's, heeding the advice would be impossible to withstand — creating a scenario in which a sane man could be kept locked up in a mental institution.

It is difficult for Norwegians to accept the need to adjust their laws so profoundly based on the actions of a single terrorist. In the wake of the attacks last year, survivors and politicians pledged that the country would not be changed. But the collective desire to salve the thirst for a kind of justice that was unavailable then is undeniable.

The last time Norway tinkered so heavily with its judicial system was when it was dealing with the notorious wartime collaborator, Vidkun Quisling. He was hanged. As proud as Norwegians are of their liberal justice, a very great many would welcome a similar outcome for Anders Breivik.