Anders Breivik: The Case for Clemency
Anders Breivik: The Case for Clemency
Alexander Lee: The Case for Clemency in Norway
At 3:25 p.m. on Friday, July 22, a car bomb exploded in Oslo outside the offices of the prime minister of Norway with sufficient force that the blast was heard seven kilometers away. Ninety minutes later, before the dust in the capital had time to settle, a man wearing a police uniform opened fire at a youth camp on Utøya Island, twenty-five miles northwest of Oslo. The indiscriminate killing continued for more than an hour. By the time the police arrived, sixty-nine people lay dead. A further eight had died in Oslo. It was the worst atrocity in Norway since the Second World War.
The perpetrator of these crimes, Anders Breivik, is a calculating and methodical individual. He had planned the attacks over a period of two years, attempting to source weapons from the Czech Republic, buying guns in Norway, and acquiring sodium nitrate from Poland. Presenting himself as a member of an ?international Christian military order? in a rambling 1,518-page manifesto, the far-right, ultranationalist Breivik intended the attacks to catalyze a new crusade against multiculturalism and Muslim immigration.
The awful events of July 22 have presented Norway with a terrible dilemma. Since at least the 1960s, Norway has prided itself on being one of Europe?s most liberal-minded democracies, and has long drawn attention to the remarkable achievements of its criminal justice system. For decades, its approach to punishment has been based on a strong belief in rehabilitation. Human beings are, it is felt, innately good, and it is only their socioeconomic surroundings that lead them to commit offences against society. With effective and considerate support, Norwegian penologists have convincingly demonstrated that even the most hardened criminals can return to society as responsible, law-abiding citizens, and have not only recorded a string of high-profile successes, but have also succeeded in cutting crime and reducing recidivism to a level far below that seen in the United States.
Stunned by the atrocities committed by Breivik, however, politicians and commentators around the world have come to question the liberality of Norway?s criminal justice system. Even if convicted of crimes against humanity, Breivik could face a sentence of only thirty years and would serve his time in prisons that bear more similarity to comfortable country retreats than to other European jails. Given the nature of Breivik?s actions and the horrifying ideology that he espouses, many have questioned whether the punishment he may receive really fits his crimes. If Norway is to protect itself from right-wing threats to its multicultural society, some have argued, it should recognize the limitations of its criminal justice system and should prioritize retribution and deterrence over rehabilitation. Knut Storberget, the Norwegian minister of justice, has announced his intention to introduce legislation to extend prison sentences with a view to punishing Breivik?s crimes and preventing the rise of extremism. When cast in such terms, there can be little doubt that criticisms of the leniency of Norway?s penal system have considerable appeal, and that the unique nature of Breivik?s crimes (and the ideological threat they pose) merit a uniquely harsh punishment.
It is, however, mistaken to believe that Norway?s problem can be expressed in such simple terms, or that the trial of Anders Breivik merely pits multiculturalism against far-right extremism. Contrary to popular opinion, Breivik?s trial is not a matter of mere punishment and deterrence, but calls into question both the essence of Norway?s criminal justice system, and the intellectual foundations of Norwegian liberal democracy.
THE CRUCIAL link between the nature of judicial punishment and the character of liberal democracy has been a feature of liberal political thought since at least the late eighteenth century. While the earliest exponents of democracy acknowledged the need for a form of criminal justice, they nevertheless recognized that the quality of punitive measures touched directly upon the strengths and limits of liberty itself.
A useful example is provided by Thomas Paine?s The Rights of Man. By virtue of a shared nature, Paine believed that all human beings are innately good in equal measure, and are corrupted only by the circumstances in which they find themselves. From this principle, he concluded not only that equality was a necessary political condition, but also that the rights through which human individuality found expression should be protected from oppression or interference. For Paine, it was evident that a minimum of liberty must be preserved both by restricting the scope of government and by punishing those crimes that adversely affected the freedoms of others.
But as Paine recognized, the character of that punishment would affect the relative importance accorded to the protection and the limitation of human freedom in society. Paine thus opposed capital punishment and contended that the ?avidity to punish? with harshness ?is always dangerous to liberty.? When the desire for vengeance is given free rein in the name of liberty, it ?either tortures [the] feelings or hardens the hearts? of the populace, and ?leads men to stretch, to misinterpret, and to misapply even the best of laws? in such a way that liberty itself is threatened. If punishment is given priority over shared freedoms, there is a danger that government may encroach arbitrarily on individual liberty in a manner that potentially affects all. ?He that would make his own liberty secure,? Paine continued, ?must guard even his enemy from oppression, for if he violates this duty, he establishes a precedent that will reach to himself.?
For Paine, even the most heinous crimes must be punished with justice and moderation, and with more regard for liberty than revenge. Similarly, since a shared goodness underpinned liberty itself, punishment must not further corrupt the fallen, but augment their better nature so that they might respect and enjoy freedom the better.
Although intended as a comment on the French Revolution, Paine?s attitude toward liberty and punishment speaks directly to the dilemma currently tormenting Norway. In this regard, two important points need to be emphasized.
First, the suggestion that harsh punitive measures should be taken against Breivik and that retribution and deterrence should be prioritized over would challenge the guiding principle of Norway?s entire penal system. One cannot base a coherent system of criminal justice on the belief that all people?except one?are innately good in equal measure.
Second, adapting Norway?s laws?as Knut Storberget has suggested?or arbitrarily worsening Breivik?s treatment risks creating a precedent. Once it is accepted that Breivik?s case merits special changes to law or to its interpretation, there is nothing to prevent legal precepts being adapted post factum with a view to targeting specific individuals in other cases. As Paine argued, the urge to protect liberty through punishment would actually damage liberty. To cast Breivik as an exception to the rule would undermine the uniform protection of a minimum of liberty, and would undoubtedly make a mockery of liberal democracy.
If we follow Paine?s argument, therefore, it appears that the cause of liberty is best served by putting aside any desire for vengeance and by treating Breivik merely as another criminal. Regardless of the gravity of his crimes, to preserve the integrity of the guiding principles of Norway?s liberal democracy, Breivik must not be treated as a unique individual.
It must, however, be granted that The Rights of Man takes us only so far in evaluating Breivik?s case. Paine?s treatise offers us a guide only to the manner in which Breivik?s punishment in isolation may impact upon liberty. The question of how the nature of Breivik?s sentence might best deter the spread of far-right threats to liberal democracy remains open. Insofar as Norwegians are interested in using Breivik?s case as an opportunity to prevent the spread of extremism, the case for unusually harsh treatment has a residual appeal. If incarcerated for a considerable period in conditions less desirable than Norway?s existing prisons, a convicted Breivik may serve as a powerful indication that Norwegians cannot and will not tolerate extremist terrorism.
Despite its attractions, such an argument is flawed. Time and time again, penologists have demonstrated that even the most severe punishments contribute little to deterring crime. The death penalty, for example, has done nothing to decrease the staggering murder rate in the United States. However severe a sentence Breivik receives, his punishment alone is almost certain to have no impact whatsoever on far-right extremism in Norway.
HOW, THEN, should Breivik be treated, if liberty is to be defended against extremism? The answer lies not in severity, but in clemency and humanity.
Norway must demonstrate that its commitment to liberal democracy is unbending, and that it will not be cowed by terror. Rather than treating Breivik with unaccustomed harshness, Norway could best prove this by remaining true to the liberal principles that have shaped both its constitution and its penal system, and thus treating Breivik in exactly the same manner as it would any other criminal.
Breivik?s sentence may also serve the wider cause of liberal democracy by bringing attention to rehabilitation, to a far greater extent than would ordinarily be the case. Should it be possible to return Breivik to society as a responsible, law-abiding citizen with a genuine revulsion for his misdeeds, he may well be able to act as an apostle of liberty and as living proof of the strength of liberal democracy in the face of extremism. By publicly renouncing extremism, Breivik could achieve more in the way of deterring far-right political groups than his prolonged incarceration could ever hope to do. Another example from the United States illustrates this point: more could have been done to prevent racially motivated crimes had Mark Stroman, who killed two men in retaliation for the 9/11 attacks but later expressed deep remorse for his ?hate,? been permitted to campaign alongside the man who survived his shooting, Rais Bhuiyan, than his execution on July 20 will accomplish.
The terrible events of July 22 have been burnt into the collective memory of one of Europe?s most liberal-minded nations, and the pain and suffering that Anders Breivik has caused will perhaps never be forgotten by Norwegians. There will almost certainly be more calls for vengeance and for the demands for liberty to be defended vigorously against the far right. But however awful Breivik?s crimes, it must be remembered that liberty can only be protected so long as its principles remain intact and its adherents retain their humanity. Norway must adhere to its most fundamental beliefs, and must temper its anger with clemency. However painful it may be, liberty demands that Breivik be treated with humanity.
Image: an impromptu shrine at the site of the Oslo bombing (Johannes Grødem, 7/23/11, Wiki. Com.)
