Monday, August 27, 2012

The insanity plea for political crimes...or are they "hate crimes"?

"To label politically motivated crimes, no matter how reprehensible, acts of insanity denies the reality of the challenge they represent to the dominant political model. No wonder that totalitarian regimes such as the former Soviet Union and China, the latter even today, prefer to impose psychiatric hospitalization on dissenters rather than respond to their dissatisfactions. Many observers thought Norway’s prosecutors were seeking a similar goal in the Breivik case, trying to exclude anti-immigration sentiment from a place in political discourse." (From Paul S. Applebaum's piece in the Globe and Mail, included below)
There is an obvious meeting of a horrendous criminal act inside a 'dominant political model' at the heart of Dr. Applebaum's argument. In Breivik's case, the motive, publicly stated by Breivik, was to forestall Islamic colonization of Europe. It seems to me that the question is not so much, "Is or was Breivik insane?" but rather, "Was this a hate crime?" And if it was declared to be a hate crime, then it would seem to warrant a far greater punishment than a mere twenty-one years, with the possibility of early discharge, unless he is demonstrably "dangerous" to the society.
Legal definitions, by their nature, frame all cases.
And legal definitions, also by their very nature, are limiting both to the individual and to the specific act that was allegedly committed.
Timothy McVey, like the mathematical genius, the unibomber, and like Breivik, and potentially the several suicide bombers all share a common thread of a similar motivation. And while we have a category of crimes designated as "war crimes" for cases tending toward the International Court of Justice in The Hague, the issue of "hate crimes," while at least in the incubator of legal discussions, has not received the kind of attention that the last decade-plus would seem to warrant.
While no law can or will excise "hate" from our society, or that of any country, it would seem that most civilized countries would like to have some common international definition and procedure and punishments for what are clearly able to be designated as "hate crimes."
The society that we all grew up in has changed. Hitler's gang was clearly guilty of "war crimes" as have other dictators been found to be, by the court in the Hague. However, it would seem that an international approach to the kind of act that was perpetrated by Breivik in Norway, would be far more appropriate, and potentially far more repressive of similar acts for similar motivations in other countries, without having to deal with the limited, and highly visible and extremely highly emotional court cases in the very cities in which these "hate crimes" are being committed.
The question of insanity, in the cases where "hate crimes" are perpetrated seems to require lower billing than the nature of the crime being designated a "hate crime" and for this reason, while Dr. Applebaum's case is worthy of consideration, it does not go far enough.
Never label political crimes, like Breivik’s, acts of insanity
By Paul S. Applebaum, Globe and Mail, August 25, 2012
Paul S. Appelbaum is Dollard Professor of Psychiatry, Medicine and Law at Columbia University in New York.

Survivors of Anders Behring Breivik’s murderous rampage in Oslo last year, along with family members of the 77 people he killed, finally have some closure on the nightmare. Friday, a panel of five Norwegian judges found him sane and guilty of the murders, and sentenced him to 21 years in prison. It is likely that he will be detained on the grounds of dangerousness for the rest of his life. With court proceedings at an end, survivors and family members understandably expressed relief and a desire to get on with their lives.
A verdict of guilt and a prison sentence, however, were not foregone conclusions. Although there was no doubt that Mr. Breivik had committed the murders, the question of his sanity dominated the trial. Successful insanity defences are rare, especially for heinous crimes, but when insanity is claimed, it is almost always the defendant who raises the issue. Life in a psychiatric hospital seems preferable to many defendants to incarceration in a prison, and the possibility of release in the event of recovery – even if the prospect is remote – adds to the appeal.
However, Mr. Breivik’s trial offered the unusual spectacle – apparently without precedent in Norway – of a defendant who insisted that he was sane, while the prosecution argued for a finding of insanity. Two teams of psychiatric experts hired by the court reached differing conclusions as to whether he had been psychotic at the time of the crime. In essence, the prosecution was attempting to have an insanity verdict imposed over the objections of the defendant, in the face of conflicting evidence about Mr. Breivik’s state of mind. How do we explain this odd turn of the tables?
For legal systems like Norway’s that allow findings of insanity even against the wishes of a defendant, the motivation is clear. People suffering from severe mental illnesses often deny that there is anything wrong with them and hence may reject a defence of insanity. Courts would be faced with the prospect of punishing seriously ill persons whose behaviour was driven by psychosis, rather than sending them to a psychiatric hospital for treatment. Most people share the intuition that it is unfair to punish someone who did not understand the wrongfulness of their actions, and imposing an insanity verdict avoids having to do so.
Mr. Breivik’s case shows why that is a bad idea. As horrifying as was his behaviour, he had an overtly political end in mind. Concerned about what he called the “Islamic colonization” of Europe, he sought to kill young leaders of the Norwegian Labour Party, whose policies he believed encouraged Muslim immigration, at their summer retreat on an island in a lake near Oslo. Mr. Breivik thought his actions were justified by the legal doctrine of “necessity” to call attention to a situation that threatened the future of his country and of Europe.
To label politically motivated crimes, no matter how reprehensible, acts of insanity denies the reality of the challenge they represent to the dominant political model. No wonder that totalitarian regimes such as the former Soviet Union and China, the latter even today, prefer to impose psychiatric hospitalization on dissenters rather than respond to their dissatisfactions. Many observers thought Norway’s prosecutors were seeking a similar goal in the Breivik case, trying to exclude anti-immigration sentiment from a place in political discourse.
Moreover, viewing political crimes as manifestations of mental disorders may steer society toward inappropriate responses. After all, neither the Oklahoma City federal building bombing in 1995 nor the London Underground attacks in 2005 would have been prevented by better psychiatric treatment. Appropriate responses required recognition that right-wing militia members in the United States and Islamic militants in Britain both pose risks of terrorism and need to be monitored to prevent future violence.
Unless we choose to deceive ourselves about the motives behind such shocking crimes, defendants should not be subject to imposed verdicts of insanity. Those who are too psychotic to recognize that they are ill should be considered incompetent to stand trial, and court proceedings deferred until their competence is restored. Friday’s verdict in Oslo, as victims and family members concurred, brought Mr. Breivik’s foray into political terrorism to its appropriate end.

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