Twenty-One Years for Mass Murder: What the World Can Learn from Norway’s Short Sentencing Laws

By Caitlin McBride

On July 20, 2011, Anders Behrin Breivik carried out the largest mass killing on Norwegian soil since World War II.[1] At 3:25pm, he detonated a van bomb in Oslo to draw the attention of police, killing eight people in the explosion.[2] Roughly an hour and a half later, Breivik then took a ferry over to the small island of Utøya, where a Workers’ Youth League summer camp was being run.[3] Dressed as a police officer and claiming to be there to make a security check in the wake of the bombing less than two hours beforehand, he killed the directors of the island, then opened fire on the campers.[4] After an hour and a half of killing using special hollow point bullets designed to increase tissue damage[5] and sweeping back over the island to hunt down survivors, Breivik was taken into custody by police.[6]

Although Breivik was diagnosed paranoid schizophrenic, he was found sane by a trial court and convicted of murder and terrorism on August 24th, 2012.[7] For such outright and heinous crimes, Breivik was sentenced to the maximum sentence allowed by Norwegian law: twenty-one years in prison.[8]

For such nefarious crimes, this sentence may seem shocking. After all, someone can receive a twenty-year sentence in the United Kingdom for burglary,[9] or in China for fraud.[10] However, the Norwegian system focuses on a different strategy for sentencing: criminals are sentenced to low prison terms, but the sentence can be indefinitely extended by five year terms as long as the prisoner is considered a threat to society.[11] It may seem unorthodox, but it begs the question: would a system of low maximum sentencing work better than a system with a system of high maximum sentencing? Although not a universal solution, arguably, if implemented, a low-sentence system with preventative detention could significantly reduce the rates of mass incarceration and improve the prison system of any country overall.

Under the Norwegian Penal Code, the maximum criminal penalty is twenty-one years imprisonment, with no option of parole for at least ten years.[12] However, the court can extend this sentence if the accused is a previous offender, or if the crime is particularly severe.[13] The initial sentence can be extended in perpetuity as long as the prisoner is a danger to society.[14] This system of potentially indefinite extension is known as “preventative detention.”[15] As of 2016, there were eighty-nine prisoners in Norway serving a preventative detention sentence.[16]

For purposes of argument, let’s divide the criminal system into two basic models: the long-sentencing structure used in countries like the United Kingdom,[17] the United States,[18] and China,[19] and the short-sentencing structure used in Norway. In theory, there are four goals of incarceration: retribution, deterrence, incapacitation, and rehabilitation.[20] Each of the two models achieve these goals differently, with mixed success.

Retribution is defined as “punishment inflicted on someone as vengeance for a wrong or a criminal act.”[21] In other words, retribution is the theory that society wants to ‘get even’ with the wrongdoer by inflicting some sort of suffering on them in proportion to their crime. In theory, people want to see criminals punished because it feels good and gives them a sense of justice. This could be why one might feel a pang of outrage upon finding out that someone like Breivik received a sentence of twenty-one years. However, in effect, Breivik is still serving a life sentence, but the condemnation is just not as definite, nor arguably, as satisfying. The short-term system might not seem as effective as the long-term system in that regard, but the theory of retribution is arguably a cultural notion. A “long” sentence in Norway might be considered a “short” sentence in the United States; what sentence someone “deserves” is entirely based on societal notions.[22]

The deterrence goal suggests that punishment deters similar action by others; the more severe the punishment, the more deterrence the punishment creates.[23] However, given that sentencing seems to have little impact on rates of crime, this theory seems to have little standing.[24] One could argue that even the low-sentencing system works as effective deterrence in Norway, considering they have a relatively low crime rate.[25] However, it is more likely that the already low crime rate perpetuates more lenient sentences, rather than the reverse.[26] Therefore, the low-sentence system might not succeed in countries with naturally higher instances of crime. 

The incapacitation goal is achieved by removing a dangerous person (the convicted criminal) from general society, thus protecting people from further harm.[27] While at first glance the short-sentence system seems like it would not achieve this goal, since criminals are not ‘locked away’ for as long, even long-sentence systems have protocols for parole and early release. Even in the long-sentence system, the “wrong” people can still get out.[28] The short-sentence system combined with a preventative detention protocol ensures that truly dangerous criminals are being put away, but less dangerous individuals are not suffering long sentences as a consequence.  

The final goal of incarceration is the rehabilitation of criminals.[29] While prisoners are spending less time in low-sentence systems (and arguably have less time to become rehabilitated), this issue goes hand-in-hand with another problem: resources. Countries with high sentencing guidelines are putting more people away for longer periods of time.[30] This is creating a system of mass incarceration, which is putting a huge strain on resources.[31] In a country like Norway, a low-sentence system leads to less persons incarcerated, which means the facilities can focus more resources on individual prisoners, and help them become rehabilitated faster.

Conclusion:

Would this work in a system like the United States? It is difficult to say. Of course, the entire makeup of each country is different and stark differences in population, unemployment, education, poverty, and other demographics might make such a seemingly good system completely inappropriate in other countries. However, given the generally positive results of the Norwegian system, and the potential solution for mass incarceration, a low-sentence system could change many prison systems for the better.

[1] See Karl Ove Knausgaard, Inside the Warped Mind of Anders Breivik, The Telegraph (July 18, 2015), https://www.telegraph.co.uk/news/2016/07/22/anders-breivik-inside-the-warped-mind-of-a-mass-killer/.

[2] See Michael Ray, Oslo and Utøya Attacks of 2011, Britannica (July 15, 2018), https://www.britannica.com/event/Oslo-and-Utoya-attacks-of-2011.

[3] See id.

[4] See Elisa Mala & J. David Goodman, At Least 80 Dead in Norway Shooting, The New York Times (July 22, 2011), https://www.nytimes.com/2011/07/23/world/europe/23oslo.html.

[5] See Rune Thomas Ege, et. al., Breivik Used Special Ammunition, VG Net (July 24, 2011), https://web.archive.org/web/20110725031759/http://www.vg.no/nyheter/innenriks/oslobomben/artikkel.php?artid=10080715.

[6] See Mala, supra note 4.

[7] See Anders Behring Breivik, The New York Times (Aug. 24, 2012), https://www.nytimes.com/topic/person/anders-behring-breivik.

[8] See id; General Penal Code [Gen. Penal Code] Ch. 2 §17(b) (Nor.). 

[9] See Christopher Reinhart, Crimes with Mandatory Minimum Prison Sentences—Updated and Revised, OLR Research Report (Nov. 13, 2008), https://www.cga.ct.gov/2008/rpt/2008-R-0619.htm.

[10] Tom Mitchell, Chinese Rights Lawyer to Appeal Against 20-Year Prison Sentence, Financial Times (Aug. 27, 2017), https://www.ft.com/content/03790572-8aed-11e7-a352-e46f43c5825d.

[11] See Norway: Norwegian Criminal Law and the July 22, 2011, Massacre, The Law Library of Congress, https://www.loc.gov/law/help/norway-criminal-law_new.php.

[12] See Gen. Penal Code, supra note 8.

[13] See Norway, supra note 11.

[14] See id.

[15] See id.

[16] See Record Prison Numbers in 2016, Statistisk Sentralbyrå (April 5, 2018), https://www.ssb.no/en/sosiale-forhold-og-kriminalitet/artikler-og-publikasjoner/record-prison-numbers-in-2016.

[17] See Reinhart, supra note 9.

[18] See Janice Williams, Serving Time: Average Prison Sentence in The U.S> Is Getting Even Longer, Newsweek (July 22, 2017), https://www.newsweek.com/prison-sentences-increased-2017-jail-639952.

[19] See, e.g., Mitchell, supra note 10.

[20]See Doris Layton Mackenzie, et. al., Sentencing and Corrections in the 21st Centurey: Setting the Stage for the Future, 1 (July 2011), https://www.ncjrs.gov/pdffiles1/nij/189106-2.pdf.

[21] Retribution, Oxford Dictionary (2018).

[22] See also, Bob Cameron, Why Does Norway Have a 21-Year Maximum Prison Sentence?, Slate, http://www.slate.com/blogs/quora/2013/05/07/why_does_norway_have_a_21_year_maximum_prison_sentence.html.

[23] See Mackenzie, supra note 22.

[24] A 2014 study concluded that “lengthy prison sentences are ineffective as a crime control measure.” Corey Adwar, Here’s Evidence That Insanely Long Prison Terms Are A Bad Way To Deter Crime, Business Insider (May 28, 2014), https://www.businessinsider.com/report-says-long-sentences-dont-deter-crime-2014-5. 

[25] See Country vs Country: Norway and Untied States Compared: Crime Stats, NationMaster, http://www.nationmaster.com/country-info/compare/Norway/United-States/Crime.

[26] See William Lee Adams, et. al., Sentenced to Serving the Good Life in Norway, Time (July 12, 2010), http://content.time.com/time/magazine/article/0,9171,2000920,00.html.

[27] See Mackenzie, supra note 22.

[28] See, e.g., Peter Holley, A Convicted Murderer was Released Early for Good Behavior. Months Later, He Killed Again., The Washington Post (April 25, 2016), https://www.washingtonpost.com/news/morning-mix/wp/2016/04/25/he-was-released-early-for-good-behavior-it-took-him-less-than-a-year-to-kill-again/?utm_term=.af706078352e.

[29] See Mackenzie, supra note 22.

[30] See, e.g., Matt O’Connor, Experts Say Mandatory minimum Sentences Lead to Increased Mass Incarceration, The Badger Herald (May 4, 2017), https://badgerherald.com/news/2017/05/04/experts-say-mandatory-minimum-sentences-lead-to-increased-mass-incarceration/.

[31] See, e.g., Danny Jasperson & Karin Rueff, America’s Mass Incarceration Problem, 7 (MTC Institute, 2017).