Free Will and the Anders Breivik Trial
On the first day of his trial, Anders Breivik admitted to planting a bomb that killed eight people outside the Norwegian prime minister’s office in Oslo on July 22, 2011, then shooting dead sixty-nine people, most of them teenagers, hours later at a summer camp on Utoya Island. Given there is no question of guilt, the principal responsibility of the Oslo court trying Breivik’s case, which will rule on August 24, is to establish whether he was sane at the time of the attacks. Two psychiatric examinations have so far produced conflicting diagnoses. The initial examination in November last year found that Breivik was, during and after the attacks, a psychotic paranoid schizophrenic and criminally insane. A subsequent psychiatric report concluded that Breivik suffers from a narcissistic personality disorder but is sane.
Breivik’s mental state during the attacks is of interest to the court because it is central to establishing criminal responsibility. The court began with the premise that it is possible for a person to be responsible for murder, and that sanity and responsibility are synonymous. It has assumed that, as long as Breivik was of sound mind during the attacks, he exercised control over his actions (that is to say, he had a choice between good and evil, and he chose evil). The ability of humans to act with such free will—uncritically accepted in modern legal systems—is the subject of extensive debate among philosophers and scientists in other contexts. If doubters of free will are correct, the foundation of Breivik’s trial—that if he is sane he is responsible—is false.
What ultimately turns on the court’s determination in regard to sanity is whether Breivik is made to suffer for his crimes.
Criminal punishment is based on three standard justifications: community protection from dangerous individuals, deterrence of future crimes, and retribution for past crimes. Without knowledge of whether he is technically sane, it is obvious that Breivik, who has told the court that he would carry out the attacks again if given the chance, must be separated from society. As with community protection, sanity is similarly not central to deterrence. Whether Breivik spends his long detention in Oslo’s Ila prison, or in a psychiatric ward that will be specially built for him inside the prison in the event that he is found to be insane, the court will have reinforced the deterrent to mass murder. The main difference is that, if found to be sane, Breivik will be held criminally responsible for his actions and punished accordingly. The Norwegian justice system prides itself on its orientation toward treatment and rehabilitation rather than revenge. Yet even under Norway’s comparatively humane system, Breivik can be jailed, that is to say incarcerated in a punishment setting, for up to twenty-one years.
Obtaining revenge for heinous crimes appeals to our moral intuitions; if someone intentionally harms others, he or she should suffer the consequences. Revenge has been an understandably present theme in Norway in the aftermath of Breivik’s killing spree. On the opening day of the trial, the daily newspaper Dagsavisen carried the headline, “The Hour of Reckoning,” surrounded by the name of every person killed on Utoya. VG, Norway’s most-read paper, quoted a survivor who said, “I’m looking forward to him receiving his punishment.”