Norway attacks: What happens if Breivik is deemed insane?

Anders Behring Breivik, who admitted to carrying out two attacks in Norway that killed 77 people, is to undergo psychiatric examination this week. If he is judged to be insane, he could avoid criminal prosecution.

Two Norwegian forensic psychiatrists are scheduled this week to start evaluating admitted Oslo attacker Anders Behring Breivik to determine if he is in fact insane.

A confirmation of insanity by the experts Torgeir Husby and Synne Sørheim could send the case against Mr. Breivik in an entirely new direction. They have until Nov. 1 to complete their evaluation. If they deem him insane, and the judge concurs – he does not have to – Breivik would be sent to a medical institution. He would remain there until he is considered to no longer pose a threat to society.

Breivik's defense attorney has suggested his client is insane. But legal experts who have examined the case doubt that Breivik, a Norwegian from a middle-class Oslo neighborhood who shocked his nation by bombing government buildings and carrying out a shooting spree that killed 77 people on July 22, will be deemed mentally unsound.

“I don’t think he has been or is insane in the way we practice insanity in Norway,” says Kristian Andenæs, a criminal law professor at the University of Oslo. “In a way he is obviously insane, but not in the sense of criminal law.”

Under Norwegian law, a person who is considered psychotic cannot be punished regardless of whether the act is motivated by psychosis or whether he has done it deliberately, according to John Christian Elden, a prominent defense attorney at Norwegian law firm Elden. Other countries have systems that require that the action is motivated or justified by a psychosis before a person can be considered free of punishment. Moreover, Norway has an exception for psychosis caused by ingestion of drugs.

“From what has been discussed in the media, it seems less likely that he is entitled psychiatric psychosis,” says Mr. Elden. “[This is] assuming that this is an action that is planned for a long time without him having acted with psychotic symptoms that are captured by the outside world. At the same time, he is described as a normally quiet person with an ordinary upbringing and intelligence.”

“Experience, however, has shown it is difficult to predict what psychiatrists will conclude – often it is the opposite of what one might think,” he adds.

The number of successful insanity pleas in Norway is quite low. The country had 1,637 psychiatric reports related to court cases between 2005 and 2009, or less than 330 per year, says Mr. Andenæs. Of those, around 20-25 percent were found insane or for other reasons, such as mental retardation, not capable to stand trial. In 2009, there were only 17 verdicts on coercive psychiatric care and 16 on detention in prison with a maximum period.

In the US, the insanity defense is infrequently raised and seldom successful. Forensic psychiatric experts are used in less than 1 percent of violent felonies, and of these only 25 percent are successful, according to James L. Knoll IV, director of forensic psychiatry at SUNY Upstate Medical University.

Under the standard for insanity in the US, known as the McNaughten standard, it has to be found that, as a result of mental illness, the person knew that it was wrong to commit that particular act at that exact time, says Mr. Knoll.

First, the person has to meet the hurdle of mental disease or defect. It is not sufficient if he had none and just committed the act because he was believed it was “ideologically” right. Finally, the person must have been in a “hard choice” situation as a result of their mental illness whereby they believed they might be killed unless they acted.

“Based on reports, and using the standard US variation of the McNaughtan test, [Breivik is] most likely not [insane],” says Knoll. “One can be found mentally ill, yet still be found legally sane.”

Breivik’s actions certainly seemed to many like the work of a madman, but experts say that they also display meticulous planning and calculation that experts say would not be associated with that of an insane man. The suspect released online a manifesto entitled "2083: European Declaration of Independence" in which he professes to be a Knight Templar and details how he made homemade bombs and acquired weapons. He also issued a 12-minute video picturing himself in various military uniforms and sporting an automatic weapon with voice trance music playing eerily in the background.

According to survivors of the shooting attack on Utoya, the summer political youth camp for Norway’s Labor party, Breivik posed as a police officer and went around coolly and calmly shooting at some 700 youth while they ran, hid under dead bodies, and tried to swim off the island. In the end, 69 were killed. A few hours earlier, he had killed eight in a massive bomb blast in the government’s office buildings in an attack directed at the country’s ruling Labor party, whom he blames for “deconstructing Norwegian culture and mass importing Muslims.”

After being captured on the island, Breivik showed little remorse except to say that he was sorry, but the acts were “gruesome, but necessary.”

If Breivik is found sane, he will stand trial for terrorism and face a maximum penalty of 21 years. The Norwegian Prosecuting Authority has also talked about the possibility of charging Breivik with crimes against humanity under a relatively new law that carries a penalty of 30 years. In reality, though, Breivik may end up spending the rest of his life in prison as Norwegian law allows for extending detention indefinitely – with reviews every five years – if the prisoner is still deemed to be a danger.

“I think he will be convicted as a dangerous person, and then he can be held for life,” says Andenæs. "It will never be a life for him in Norwegian society."