Anders Behring Breivik and the Insanity Defense

July 27th, 2011 by rebeccac

Early this week, the lawyer representing terrorist Anders Behring Breivik implied that he would be seeking the insanity defense for his client.

It’s probably surprising to very few people – after all, what other options are left to a man charged with defending someone who executed one of the most devastating peacetime attacks on a nation as benign as the Kingdom of Norway? Who confessed to both the bombing and the shooting after letting himself be apprehended?

Almost every legal system in the world, save for Sweden, has a provision for an insanity defense, exempting defendants with mental health problems from responsibility for their actions and therefore shielding them from full criminal punishment. But there are a lot of elements to an insanity defense* that have developed over the years, and it’s worth a look to try and estimate whether even this tactic will be sufficient to try to explain the terrible acts he committed.

(*For the sake of this article, we’ll look at the U.S. insanity defense – mainly because the author couldn’t learn Bokmål quickly enough to read up on Norwegian law.)

Insanity defense through the ages
Exemptions for the criminally insane can be documented all the way back to the Babylonian Code of Hammurabi from 1700 BC. The ancient Greek and Roman civilizations also had similar qualifications, so there is a long and entrenched history for this argument in all sorts of legal systems. In general, they all relate to the lack of mens rea (“guilty mind”), which essentially claims that the crime itself isn’t enough, that the criminal must also have – on some level – a guilty conscience about it.

However, the definition of who is considered too insane to be responsible for whatever crime was committed varies and is often being argued and changed. Under 13th century British King Edward II, a person was insane if their mental capacity was no more than that of “wild beast.” After 1500, it was on the juries to acquit the insane and then refer them to the king or queen for sentencing of detention.

In 1843, the British House of Lords created the M’Naghten Rules, which continue to shape the insanity defense even today. They weren’t so much actual laws as a set of questions that served as a guideline and sought to determine if, because of mental illness, the criminal either (a) didn’t know his action was wrong; or (b) didn’t understand the nature of his own actions. Many U.S. states still use versions of these rules to determine legal insanity.

Other developments have come and gone through the years. The idea of “irresistible impulse” was introduced to expand the M’Naghten Rules to cover those who understand that their actions are wrong but lack the mental capacity to stop themselves. Broader arguments for the definition of legal insanity were introduced in the 1950s but set aside a few decades later in another case. The latest clear development was The Insanity Defense Reform Act of 1984, put into place after John Hinckley, Jr. was found not guilty by reason of insanity after attempting to assassinate President Reagan. It returned more strongly to the M’Naghten Rules as a basis for legal insanity and making it the responsibility of the defense team and expert witnesses to prove the existence of severe mental illness.

Insanity defense today
While it may seem like every time you turn on the television some high-profile criminal is pleading insanity, it’s actually neither very popular nor terribly successful in the United States. In 2001, Frank Schmalleger did a study of eight states and found that less than 1% used the insanity defense, and of those cases, only 26% were successful. On top of that, the majority of the insanity defenses that won did so only because the defendant had a previously diagnosed mental illness.

So even though the use of this defense is rare in the U.S., media exposure makes it seem like it’s everywhere. Traditionally, cases where the insanity defense is pleaded suddenly become much more interesting to the viewing public and get much more air time on news channels. It’s a tricky situation and one seen by many in the public as just an excuse by defendants to try and wiggle out of going to prison in favor of going to a mental health facility instead.

What about Breivik?
Yes, what about him. An admitted domestic terrorist who systematically killed 76 people, many of them teenagers at a youth camp. His lawyer has already made public statements saying that Breivik was on drugs at the time of the attacks, that he believes what he did was necessary and that he is fighting a war. The consensus seems to be that these statements are laying the groundwork for an insanity plea. If Breivik’s lawyer proceeds with that argument – and Breivik agrees to it, which is a question in and of itself – what is the likelihood that he will be effective?

Legal experts have said not so good. The nature of the attacks themselves suggest months, maybe even years, of preplanning in order to effectively execute, and none of his behavior during the event seemed to imply anything other than full and methodical control, which undermines any claims to impulsive or temporary insanity. When you pile onto this his political writings, his confession that his actions were horrible but necessary, and his prediction that many would see him insane afterward, it’s going to be a tough sell all around.

But in a country as proudly free and democratic as Norway, where even monsters and madmen have the right to a fair defense, it might be the only chance Breivik has got.

What are your thoughts on the insanity defense? Is it a valid legal protection? And does Breivik stand a chance with it or with any defense?

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