ANDERS BREIVIK: Meaning of Insanity Defense in Criminal Law by Adeyemi Oshunrinade


Since the commission of the most gruesome and the worst peacetime massacre in modern history, prosecutors and the defense team have battled in court to determine whether the confessed mass killer Anders Behring Breivik suffers from the disease of the brain or of unsound mind that is, insane when he killed 77 people on July 22, 2011. So far, the issue is not about guilt since Breivik had admitted to killing all the victims, the issue however, is whether Breivik is entitled to the insanity defense.

Based on testimonies by mental health experts, it is still unclear whether the Norwegian mass killer was insane when he carried out the bombings and mass killings; Breivik’s behavior in court has also complicated the already difficult nature of the case. His reasons for the attack have been to deliver Norway from colonization by Muslims and to strike against the political establishments that have betrayed the country with liberal immigration policies.

So far, court appointed psychiatrists disagree on whether his actions were a result of an extreme political ideology or a disease of the mind which drove him to the point of insanity when he committed the massacres. Meanwhile, the defense team has presented Breivik’s view that he was sane and not insane when he committed the acts. The court must now determine by July or August, whether to sentence Breivik to 21-year in prison or confine him to a mental institution. If he is determined to be psychotic, Breivik will be confined to a psychiatric institution but if deemed sane he is likely to spend 21-year in prison the maximum allowed under Norwegian law; but if found to be a danger to the society, he may remain in prison indefinitely.

Breivik’s case has once again brought to light a well recognized defense in criminal law, the insanity defense. One of the issues in criminal law is whether one legally considered of unsound mind or disturbed faculty, be made to answer for a crime or act he has committed. Should one who is found to be of mental disease, or a mind so disturbed that he cannot understand the charges against him be made to stand trial until his disease and troubled mind is restored? These and many issues are considered in criminal proceedings in order to prevent a miscarriage of justice.

At various points in a criminal case, the issue of insanity is considered relevant and important; the first issue is to determine whether at the time of the alleged crime the defendant is of sound mind and mental capacity to appreciate his act; If his mental ability is of such character and degree as to negative criminal responsibility, such a determination will entitle him to an acquittal. The second issue to be raised is at the time set for arraignment; if the mind of one indicted is so disturbed by mental infirmities that he is unable to understand the charge against him and to plead intelligently thereto, he should not be permitted to plead until his faculty is restored.

The third issue deals with the mental state of the defendant at the time of trial; mental disorder at such stage has nothing to do with the issue of guilt or innocence, unless it may have some tendency to show the mental state of the defendant at the time of commission of said act. A defendant whose mental state is so disturbed that he does not understand the charge against him, and possible defenses thereto, and hence is unable properly to understand the advice of his counsel in regard to the conduct of the trial, may not be tried at the moment, whatever his mental condition may have been at the time of the alleged crime. Hence upon such a finding the defendant is committed to some mental hospital. He is to remain there until his mental condition is restored, after which he is returned to court for trial. (See Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845 (1972)).

The fourth question raised is after a verdict or plead of guilty, when the defendant is asked whether he knows of any reason why judgment may not be delivered against him. A determination of insanity at such stage will trigger defendant’s confinement to a mental institution; for in the words of Blackstone, “had the prisoner been of sound memory, he might have alleged something in stay of judgment.” (See 4 Bl.Comm. 24-25).
The last and final question is raised at the time of execution of judgment, as in capital cases; it must be determined whether the defendant is of sound mind. This is based on the principle that “one must not be put to death while of unsound mind, for if he is of sound mind, he might be able to mount a defense in stay of his execution.” (See Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457 (1950).

The nature and extent of mental disorder that will entitle the defendant to an acquittal based on insanity, has become a problem for debate in criminal law. The question is not whether the defendant was once of sound mind which has deteriorated due to a disease or mental defect acquired at birth; the sole determinant is the nature and extent of defendant’s mental infirmity. While a mental disease may be so advance as to negative criminal culpability, there exists no uniformity as to the kind of disorder required for insanity cases.

The best test for insanity and one used in homicide cases to determine the state of mind of the accused is based on the M’Naghten case, known as the M’Naghten test for insanity. Daniel M’Naghten shot and killed Edward Drummond, private secretary to Sir Robert Peel. M’Naghten believed that Peel was heading a conspiracy to kill him, he had intended to kill Peel, but he instead shot Drummond because he mistakenly believed him to be Peel. At trial, M’Naghten claimed that he was insane and could not be held responsible because it has been his delusions which caused him to act. The jury agreed and he was found not guilty by reason of insanity.

The ruling became unpopular and was thrown to debate in the British House of Lords; members of the House posed five questions to the Justices of the Queen’s Bench, concerning the standards for acquitting a defendant due to his insanity. The answers given to these questions by the judges were published in connection with the M’Naghten’s case and they have come to be regarded as if they were part of the M’Naghten’s decision.

The most significance of the answers is one which states that a defendant is not entitled to the insanity defense: “unless at the time he was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” (see M’Naghten case, 8 Eng.Rep. 718, 10 Cl. & amp; Fin. 200). The answer is what has come to be known as the M’Naghten rule.

At this juncture, it is important to say the fact that a defendant is deemed insane, does not mean he gets to go free; in most cases the defendant is found guilty by reason of insanity which means he may have to spend the rest of his life in a mental institution. In fact, many convicted felons prefer jail time to confinement in a psychiatric institution; and to some, the blemish of being deemed a psychotic felon is more tarnishing than a time in prison. Maybe these among other reasons is why Anders Behring Breivik, refused the insanity defense. For the questions posed by the House of Lords and how the justices answered, (See M’Naghten Case, House of Lords (1843) 8 Eng. Rep. 718, 10 Cl. & Fin. 200).

Dr. Adeyemi Oshunrinade [E. JD] is an expert in general law, foreign relations and the United Nations; he is the author of ‘Wills Law and Contests’ and ‘Constitutional Law-First Amendment’. Follow on Twitter @san0670.


Images by Adeyemi Oshunrinade

Categories: Criminal act, Criminal Justice, Criminal Law

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