Bail reform—including the elimination of the bail system—has become a fashionable policy position for would-be wonks.
The judges in the case of Anders Breivik, the young Norwegian who murdered 77 of his compatriots supposedly in protest against his country’s social and political policies (thus creating more victims per head of population in Norway than did the September 11th bombers in America), found him to have been fully responsible for his actions, and sentenced him to imprisonment as an ‘ordinary’ criminal. They did not yield to what must have been a strong temptation to accept the following specious bar-room syllogism:
No one but a madman would have killed 77 people.
Breivik killed 77 people.
Therefore Breivik was mad.
The prosecution had argued for treating Breivik as psychotic because, it claimed, treating a normal man as a psychotic was more humane than the opposite error, treating a psychotic as a normal man. As a matter of empirical fact, I am not at all sure that this is true; but the prosecution argument displays scant confidence in the ability of the judges to distinguish between normality and gross psychiatric pathology. No doubt normality does slide by gentle degrees into abnormality, as tallness does into shortness, and can therefore sometimes or even often be difficult to distinguish; but that does not mean that normality and abnormality, and tallness and shortness, do not exist and are always indistinguishable. Besides, it should be remembered that not all abnormality is exculpatory; in fact, we are all of us abnormal in some respect or other, without our abnormalities ipso facto excusing our misdeeds.
The sentence handed down to Breivik seemed ludicrously inadequate and disproportionate to what he had done: 21 years’ imprisonment. The fault lay not with the judges, however, but with the law, which allowed no longer a sentence. There is no imprisonment in perpetuity in Norway, the reason being, as the deputy director of the Norwegian prison department, Andreas Skulberg, put it, that ‘a person can change.’
No doubt as things are managed in Norway (for the moment) everything is for the most humane in this, the most humane of all countries. Nevertheless, I find what the deputy director said creepy, or mildly sinister, in its implications, if not yet in its practice. It suggests that the primary purpose of the criminal law for his society is the redemption of the criminal, and that no act – not even the killing of seventy-seven people – is beyond the pale for it. A society for which nothing is beyond the pale is built on foundations of sand. If Quisling were to return to Norway, he would not be executed as a traitor, he would be treated as a person whose change of opinion is pending.
Suppose that Breivik, instead of being unrepentant, now expressed deep remorse for what he had done and that this remorse was sincere. Furthermore, let us suppose that, in so far as such matters can be judged, he was found unlikely to commit any further violent offenses. Would it be right, would it be just, then to release him immediately? Keeping him in prison despite his repentance and future harmlessness would not be a matter of deterrence, either, since very few people would contemplate crimes analogous to his and because, even if they did so contemplate them, they would be unlikely to be deterred by the prospect of imprisonment. On the purely utilitarian theory of punishment, then, Breivik (or any other criminal) should be released the moment he no longer constituted a danger for society; but to release Breivik in this way, however remorseful his state of mind, would outrage very gravely our sense of justice.
Mr Skulberg said that the Norwegian criminal justice system was not naive: ‘We know,’ he said, ‘that certain people will never leave prison.’ But in the absence of imprisonment in perpetuity how could this be known? Mr Skulberg explained: ‘Preventive detention permits the courts to re-evaluate the length of the punishment according to need.’
In other words, if at the end of his sentence of 21 years Breivik is thought to be still dangerous, he could be kept in prison indefinitely. This would be an administrative matter, however, and not one of due process: he would be retained in prison for what he might do in the future, not for what he had done in the past. But the possibility of false positives and false negatives in the assessment of future dangerousness, even with the most careful study in the world, is so great that preventive detention should have no place in penal law, at least if it is accepted that arbitrariness is the antithesis of law.
Clearly no sensible person would mind very much if Breivik were detained for much longer than 21 years. To spend only 4.83 months in prison per person killed is not enough. But the principle of preventive detention in criminal law is a very bad one, with a horrible history, even if for the moment it is not badly abused in Norway. The whirligig of time brings in its revenges, however, and it is not very difficult to imagine a scenario, where preventive detention is accepted in principle, in which the best of intentions turns rapidly into the worst of practices.
The self-congratulation prevalent in Norway is not only nauseating in itself, like all self-congratulation, but dangerous, in so far as it reduces the capacity but increases the need for self-examination.
The Norwegian Secretary of State for Justice, replying to criticisms that Breivik had been permitted to continue correspondence with hundreds of sympathizers, said, ‘A person condemned to prison cannot be deprived of his fundamental rights, including those of self-expression and voting. The loss of liberty is sufficient punishment.’
This is drivel of positively Pecksniffian hypocrisy and complacency. There can hardly be a more fundamental right – if such fundamental rights actually exist – than that to freedom of movement. The object of imprisonment is to remove that fundamental right from a person. Whether other fundamental rights should be removed from prisoners, therefore, is a matter of humanity, justice and expediency and not one of their fundament. It is far from obvious to me that permitting Breivik to vote and to proselytize is humane, just or expedient.