Why is Breivik Facing a Maximum Sentence of Just 21 Years?

by Margy Slattery | August 1, 2011

Americans reading the news last week may have been surprised to learn that Anders Behring Breivik—the man who has admitted to killing 76 people in twin attacks in Norway on July 22—currently faces a maximum initial sentence of just 21 years in prison. Timothy McVeigh, in contrast, was found guilty on eleven counts for killing 168 people in the 1995 Oklahoma City bombing, and he was executed by lethal injection in 2001. More recently,  Jared Loughner has been charged on 49 federal counts, some of which could also result in the death penalty, for killing six people in a gun rampage in Tucson earlier this year. Why such a light punishment for Breivik?

Indeed, the recent attacks in Oslo and Utøya, and Norwegians’ reactions to them, reveal a leniency in the Norwegian penal system that stands at odds with American attitudes toward criminal justice. In Norway, where police are typically unarmed and the death penalty is banned, prison sentences are rarer and often shorter than in the U.S. An emphasis on rehabilitation, according to Norwegian law professors and journalists with whom I spoke, reveals a country that prides itself on openness, social welfare, and a strong sense of fellesskap, or fellowship—even as it copes with the deadliest attack on Norwegian soil since World War II.

Jørn Jacobsen, a post-doctoral researcher in criminal law at the University of Bergen, told me that Norwegian attitudes are connected to the country’s historical and social identity as a welfare state—in his words, a “small community with a high level of solidarity.” The U.S. penal system used to place a similar emphasis on rehabilitation, according to James Whitman, a professor of comparative and foreign law at Yale, but beginning in the 1960s and 70s, there was a broad loss of faith in social reform programs and a cultural shift toward the principles of personal independence and responsibility.

Such faith in rehabilitation has largely persisted in Norway, however. Nina Berglund, the editor of Views and News from Norway, an English-language news site based in Oslo, explained to me that many Norwegian judges are so-called “’68-ers” who came of age during one of Norway’s most liberal political eras, and so are known for their clemency. A four-year sentence for rape, for instance, is considered strict in the Scandinavian country. Once in prison, offenders in Norway often enjoy better treatment than those in the United States. Not only are Norwegian prison conditions cushy by American standards, but Whitman says European prisons tend to have more robust rehabilitation programs, including stronger financial support, such as unemployment insurance, after release. Berglund added that inmates in Norway are typically allowed to take unsupervised leaves of absence, to go to the movies or a museum, and are expected to return on their own accord. “The entire system here is based on trust and rehabilitation, not punishment itself,” she said. “Norwegians seem to firmly believe that, deep in the heart of even the worst criminal, can be found a good person.”

But does this belief hold true for Breivik’s alleged crime, considering its atrocity and scale? The current charge against him suggests as much. In contrast to McVeigh and Loughner, Breivik has so far been charged with just one crime: terrorism, defined as disturbing vital functions of society, including the government, and causing serious fear in the population—but not actually killing people. Some Norwegian legal scholars, including Per Ole Johansen, a professor of criminology and sociology of law at the University of Oslo, told me that Breivik could eventually be charged with murder as well, but others suggested that it doesn’t matter because his time in prison would not be affected: In Norway, criminal sentences cannot accumulate, so the crimes of murder and terrorism—whether taken individually or compounded—still carry a maximum sentence of 21 years. According to Ragna Aarli, an associate law professor at the University of Bergen, Norway recently introduced a longer, 30-year sentence for crimes against humanity, for which Breivik may also be eligible. (Another law has extended the maximum sentence for terrorism to 30 years. However, the law is not yet in effect and so cannot apply to Breivik’s case.)

The length of Breivik’s sentence, meanwhile, could be a moot point because, if Breivik is ruled insane—as his lawyer suggests he should be—he would receive treatment, rather than imprisonment, until judged medically stable, University of Bergen law professor Henry John Mæland explains. Here again there is a contrast with the U.S., where the insanity defense proves successful far less often, according to Whitman, and there are far more offenders who may suffer from mental illness but end up in prison nonetheless.

The only way that Breivik could end up in prison for life, it turns out, is if he is convicted according to a sentencing track known as forvaring, or “custody,” which would allow his imprisonment to be prolonged in five-year increments for as long as he is considered a threat to society. Norway’s minister of justice, Knut Storberget, announced on Friday that he will likely propose legislation to lengthen maximum prison sentences in the country. But the extent of the punishment or retribution contained within Breivik’s sentence seems less a matter of public concern in Norway than the desire for the country to heal, according to Nils Christie, an emeritus law professor in criminology at the University of Oslo. Christie told me he was not aware of any “voices for revenge” in Norway or calls for harsher punishment for Breivik. “We want to keep our standards,” he explained. “Hate would be to give victory to the offender.” Johansen added that he thinks the most pressing topic of discussion in Norway now is why Breivik did what he did, not strictly what will become of him.

As it turns out, according to Christie, Norwegians might be better off because of this attitude, as well. He defended the Norwegian criminal justice system not only as more humane than that in the U.S., but also as more effective. Norway has 73 prisoners per every 100,000 inhabitants, compared with 743 in the U.S., and only 20 percent of ex-convicts in Norway go back to prison after two years, compared with about 60 percent in the U.S. In public remarks since the attacks, figures including Prime Minister Jan Stoltenberg, Crown Prince Haakon, and Oslo Mayor Fabian Stang have similarly refused to call for retribution or revenge. At a memorial in Oslo on Tuesday, Stang said that, in the end, Breivik’s greatest punishment would be for Norway to become “even warmer, more generous and more democratic.”

Margy Slattery is an intern at The New Republic.

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