Does anyone doubt that if Anders Behring Breivik were prosecuted for the murder of 77 people in the United States we’d either seek to kill him or to imprison him for as many consecutive life terms as the judge could impose? We administer justice with a sledgehammer, shattering the lives of defendants and forgetting that in almost every case no person is the sum of their worst moments. There is a better way.
Breivik all but goose-stepped into an Oslo courtroom last week to be sentenced for last year’s bloody rampage, offering a clenched right fist in a fascist salute. He slaughtered scores of young Norwegian to make a point: Europe is in danger; the Moslem hordes are sweeping in; "cultural Marxism" is threatening good order. Breivik shows no signs of changing his views. One senses he’d do it all over again if he had the chance. He is the very face of hatred and its twin, fear.
So the Norwegian court sentenced him to 21 years in prison, the maximum under law. He can be held for five-year extensions at the end of his sentence if he is deemed a continuing threat to society.
We sentence people to more time in this country for selling drugs. We call it justice and pretend long sentences are required. But our criminal justice system is the exception. We incarcerate more people per capital than any other nation, and for longer periods of time. Land of the free, anyone?
If you’ve never stood next to a young person sentenced to 30, 40, 50 or more years, you don’t know the darkness we call justice. I once stood next to a young man sentenced to five consecutive life terms plus 50 years. We counted it a dark victory of sorts that the Government did not succeed in killing him. "You know what this means, don’t you?" I asked as the judge was imposing sentence. We were good friends by this point. "The first couple of times you die, the Government’s got to revive you; otherwise it is an illegal sentence." We laughed, to the judge’s chagrin. What more were we to do when all hope was being crushed in the name of justice? I recalled this dark humor with sorrow not long ago, when I learned my client had been stabbed to death in a federal penitentiary. He died but once.
And still there are those in this country who think we go too easy on those convicted of crimes.
I’m working my way through a recently published textbook on criminal justice, Victims in Criminal Procedure, edited by Douglas Beloof, Paul Cassell and Steven Twist. The authors call for a "victim participation model" of criminal procedure, one that stresses the need for treating victims and their representatives with fairness, dignity and respect. The authors argue that our traditional models of the criminal justice system, either the crime control model, stressing the need for efficient processing of criminal cases, or the due process model, stressing procedural safeguards and limitations on the state’s authority to prosecute, neglect victims.
I am a criminal defense lawyer. I defend the accused, often against the consequences of isolated moments in their lives. The due process model works for me. I’ve watched the emergence of victims’ advocates and changes in the law benefitting victims with a wary and scornful eye. We say no person can be a judge in their own case, and then yield the floor to those undone by injury to tell us what justice requires: It seems an odd perversion of justice.
But reading about the Breivik case has caused me a moment’s hesitation. The New York Times reports that the families of those slain, and the surviving victims, are showing a restraint not seen enough among victims in North America. "If [Mr. Breivik] is deemed not to be dangerous any more after 21 years, then he should be released," one victim said. I wonder whether the restraint, the civility, shown by the victims is a function of the fact that during the trial, each was given a chance to be heard by the judges deciding the case. During the ten-week trial, a trial in which there was really no question about the defendant’s guilt, the court heart 77 autopsy reports, listened to short biographies describing each of the dead, and allowed the survivors to describe their ordeal. Norway, it seems, has adopted something approaching the very "victim participation model" of the criminal justice system sought by victim’s rights advocates in the United States. The victims and their families were heard.
Breivik deserves to be isolated from society. No question about it. Whether he is ever fit to walk the streets again is an open question. That Norway can even consider the question is a tribute to its criminal justice system. If its more lenient and humane criminal sentencing laws are a function of greater victim input in the handling of criminal cases, we ought study what Norway is doing.