More than any other instance of crime and punishment during the past fifty years, the sentencing of the mass murderer Anders Behring Breivik in Norway last week reveals just how wide is the chasm between Western Europe and the United States when it comes to criminal justice.
Breivik, who killed 77 people and injured scores more in Norway in July 2011—the largest mass slaughter in Norway since World War II—was sentenced to 21 years, or just over 3 months per victim. 21 years! In some places in the U.S. you can get more time for selling a half ounce of cocaine.
Never mind that it’s the harshest sentence the Norwegian criminal justice system can mete out, nor that Breivik, who despite being deemed sane by the courts has not displayed an ounce of remorse for his crimes, and will almost surely spend more than 21 years—and perhaps the rest of his life—behind bars.
The point is that while American criminal law remains stuck in medieval times, and our philosophy of punishment mired in a rationale that never made any sense, Norway recognizes that we don’t need to lock people up forever and throw away the key in order to express our abhorrence at what they have done. More important, it’s not the best way to keep society safe.
As a death-penalty lawyer, I have had clients executed just for being present at the murder scene, even if they themselves killed no one. Breivik, on the other hand, may not even die in prison; when he becomes eligible for parole in 2033, he will be only 53.
While my clients await their fate, they sit locked in tiny cells 23 hours a day. They have neither computers nor TV. Breivik will have access to exercise equipment and be able to watch television. He will be able to work on a laptop (without Internet access).
So what? you might say. This just reveals the soft heads that define the European stance on crime. But which continent is drowning in a sea of gun violence and weekly bloody massacres?
Norway isn’t the outlier here. The sentence Breivik received may make jaws drop here in Texas, but it reflects an approach to punishment common across all of Western Europe.
Theoretically, of course, the U.S. and Europe punish people for the same two reasons: to keep society safe, and to inflict pain on people who have hurt others. But while Western Europe has kept sight of both objectives, America has become consumed with the latter.
The New York Times quoted the father of a young girl killed by Breivik as saying he means nothing to him, and now that Breivik is prison for decades or longer, he can stop thinking about him and get on with his life. As the father of a young boy, I doubt I would have that father’s magnanimity, but like me, he is a product of his culture. Norwegians believe in moving on, while Americans would still be calling for Breivik’s head. We seem to believe that we are dishonoring the memory of the dead unless we dehumanize the criminal and inflict maximum pain on him.
But it would be a mistake to think the European model cares any less about victims than we do. If anything, Europe is more sensitive to victims than we are. Although the court gave Breivik greater leeway to expound his demented ideas during the trial than he would ever have had in an American jurisdiction, the court also heard from every victim or victim’s survivor who wanted to testify. Seventy-seven separate autopsy reports were introduced into evidence. The judges indulged Breivik’s twisted ideology, but they also invited stories about his victims. The many injured were not remotely lost or overlooked in the proceedings.
In the U.S., meanwhile, family members of many of the victims of my clients complain that their pain is ignored even as we foam at the mouth to string up the evildoers.
There’s also the sheer amount of time we invest in these cases. Breivik’s prosecution took barely a year to reach its conclusion. While the appeals drag on in death penalty cases, family members of the victim never know whether the killer of their loved one will be spared. Many of them hope the execution will finally allow them to move on with their lives. You’d have to ask them whether that’s how it turns out.
In the meantime, government lawyers in America spend a decade defending a death sentence, and lawyers appointed to represent the murderer spend a decade trying to save him. In Norway and the rest of Western Europe, those lawyers too are moving on.
The cruelest irony of all is that America’s harsher attitude toward criminals does not translate into greater safety for the rest of us. It turns out that the two objectives of punishment can be at war with one another, and in America we are giving up greater security to indulge a vestigial instinct. Criminal penalties in Europe are substantially shorter than they are in America, yet Europe has fewer repeat offenders. In Germany, for example, prison sentences are a third as long as they are in America for equivalent crimes, yet the rate of recidivism is twenty-five percent lower than on this side of the Atlantic. More severity, it turns out, does not reduce crime, and might even increase it.
If the aim of the criminal-justice system is to protect society, ours is failing. By thinking we are being kinder to victims by punishing their wrongdoers more severely, we may actually be creating more victims.
Which leaves only one justification for America’s approach: The visceral belief that people who do something bad should suffer terribly, and for a very long time. As a homegrown member of this culture, I can sympathize. It can be emotionally satisfying to see a cruel person suffer. But what Europe recognizes that our own justice system stubbornly refuses to is that some people who do something unspeakably vile can change.
Based on his statements in court, I doubt Breivik will ever change, and I doubt he will ever see the light of freedom, and I’m not troubled by that. Once his sentence ends, judges can keep him in prison for an endless succession of five-year terms if he is deemed a danger to society, which seems likely. But the premise of the sentence—that the best way to put tragedies behind us is to end them quickly, and that the infliction of maximum pain does not make us any safer—is an idea that America’s vengeance-centered culture could learn from.