Enormous Crimes and their  Punishment

   There is an article by Karl Ove Knausgaard in the May 25, 2015 issue of The New Yorker about Anders Behring Breivik, the man who killed seventy-seven people “most of them one by one, many of them eye to eye.” The article, however, is not about this horrendous event, nor about the perpetrator’s trial, but about his person. It’s subtitle “The terrible enigma of Anders Breivik,” is certainly appropriate when writing about such a mass murderer, prompted by a huge “manifesto” he had written, much of it, I take it, consisting of long quotation from other people’s writings. Its theme: ‘we are at war with Muslims and multiculturalism.” The murders were “meant to be a wake-up call.” The article shows Breivik to be a self-involved, petty, indeed despicable person. Breivik killed seventy-seven people “most of them one by one, many of them eye to eye.” He was tried and convicted.

   On April 19, 1995, Timothy James McVeigh detonated a truck bomb in front of the  Alfred Murrah Federal Building in Oklahoma City. It killed 168 people and injured 684 others. McVeigh’s motives, too, were ideological; his actions were to inspire a revolt against what he held to be a tyrannical government.  The dénouement was quite rapid by the standards of the American legal system. McVeigh was indicted in August of 1995; on June 7, 1997 he was found guilty of all charges, with the jury recommending the death penalty a few days later. After spending an atypically short time on death row, Timothy McVeigh was executed on June 11, 2001.

   The aftermath of Anders Breivik’s conviction is very different.  Although he received the maximum sentence possible under Norwegian law, this murderer was sentenced to be jailed for twenty-one years, with the possibility that this term can be indefinitely extended if it is feared that, if freed, he would be a danger to others.

  Breivik killed seventy-seven people “most of them one by one, many of them eye to eye.” Jailed for wenty years?  Many outside Norway expressed the opinion that for a sane person who committed so huge a coldblooded massacre the death penalty should be brought back. Not so in Norway: Breivik’s crime did not spur a movement to return the death penalty to the books, with polls indicating that most were “satisfied” to have him receive the maximum penalty as now stated in Norwegian criminal law. 

   What is the difference in what the two sentences accomplish? First, it is highly improbable that the punishment for either of them would deter others to commit similar crimes. Such mass murders are committed by fanatics who, even if they are correctly regarded to be sane, will not be prevented from acting by  an envisaged punishment. Second, the punishment meted out should assure that the criminal will not be able to commit further crimes. While execution does this definitively, no one expects that Breivik will ever be allowed back into society. As long as there are prisons in Norway, while alive, he will inhabit one of them.

   [As I started to think further about the punishment of these two criminals, I suddenly realized that I had been this way before. More than half a century ago, I wrote a short essay, “Two Theories of Punishment and a Crime of the Greatest Magnitude.”¹  Surprisingly, I quickly found the paper in my files and, on rereading it after all these years, it turns out to be very useful in this context.]

   The first of those two theories of punishment, the  essentially liberal corrective theory (to provide an oversimplified summary) “looks forward to the future . .  . ; the wrong was done; nothing can change that.” Society’s job is to aim at modifying the criminal’s future behavior. That may indeed involve incarceration,  but much more is required. 

   The retributive theory calls for restoring the moral order; “so that justice may be done, punishment must be equal in magnitude” that is, in pain and harm, to that of “the crime that was committed.” An eye for an eye . . . .

   I concede, in the 1952 paper, that neither theory can be applied “with mechanical ease” to that crime of the greatest magnitude. It seems absurd, indeed offensive, to engage in corrective measures—therapy?!—aimed at modifying such a criminal’s future behavior. But then there can’t be adequate retribution either—inflicting equivalent harm and pain on the criminal, so as to restore the moral equilibrium. “The criminal’s capacity is for pain is too limited; his single life is not enough, . . . making death too good for him.”

   But the death penalty is also immoral. In my 1952 piece I did not take a stand on that ultimate punishment, though I certainly do so now.² Taking the life of a person is as wrong when enacted by the state as it is when “justified” by a cuckolded husband. It is time to join the countries of the European Union and get rid of the practice of killing convicted prisoners.

   What remains for either theory of punishment? Without remembering my long-ago thoughts, I nevertheless came to the same conclusion: that in the case of crimes of the magnitude of McVeigh’s and Breivik’s, both theories will opt for the same sentence.       

   Regarding the corrective theory, it may well be that no “treatment” can be devised that would assure “good behavior” in the future. There is a necessary step, however, toward such a correction: the criminal must come to “recognize that what he has done was wrong. He must see that wrongness and the full magnitude of it; . . . and that he did that wrong . . . . Unless we know that the criminal knows that he is guilty, . . .” we cannot speak of correction.

   Even if morality permitted it, which it emphatically does not, what I called “the tortures of barbarity are inadequate” for retribution. To abbreviate, “Perpetually recurring torture leads either to the destruction of that sensibility that makes genuine pain possible or it engenders not only resentment but a sense of glory in mere survival. . . it may well instill a feeling of self-justification.” The retributive theorist, too, must make the criminal “see the evil of his actions and his responsibility for their occurrence,” an insight that may well lead to “keen suffering.”

   On the theory here proposed Timothy McVeigh was let off too easy. It is hoped that the Norwegian system is able to bring Anders Behring Breivik to realize the enormity of his guilt with its accompanying pain.

¹Bucknell Review, Vol XI, No 1 (December 1962), pp 109-115. Subsequent quotations from that article.

²Also see, in this blog,” Capital Punishment Now and in the Future,” posted on March 14, 2014, above.

Your comments, positive or negative, are much appreciated.

For your convenience and mine use the email method, the last item in the column on  the right.