Norwegian extremist Anders Behring Breivik may seem insane, but the defense may not work for him.
Insanity is a legal term, not a psychiatric one.
It is possible for a criminal to be considered legally sane, even when his actions seem crazy.
The insanity defense is used rarely and it is even less often successful.
Aug. 24, 2012 Update: A court found that Anders Behring Breivik was sane when he killed 77 people. He was sentenced to 21 years in prison -- the stiffest sentence permitted under Norwegian law.
Could Norwegian extremist Anders Behring Breivik, who bombed buildings in Oslo last July and then went to a nearby island, where he killed dozens of young people at a Labor Party summer camp, possibly be sane?
That is the focus of international attention as a Norwegian court considers the possibility of an insanity defense. Breivik continues to insist that he was totally mentally stable at the time of the attack and was acting in self-defense against people who are pro-immigration. He slaughtered a total of 77 people.
The simple answer, experts say, is -- legally -- yes, Breivik could be considered sane. Insanity is a legal term, not a psychological one. So, even if Breivik has a mental disorder, he could still be sane in the eyes of the court if he had impulse control, acted with intent and was capable of understanding at the time of the attacks that what he did was wrong.
As with any legal standard, though, establishing sanity or insanity is a complicated and nuanced process.
"This has been an ongoing struggle for, literally, centuries," said Robert Schopp, professor of law and psychology at the University of Nebraska, Lincoln. "The idea is that some people are so severely impaired that they shouldn't be held responsible. But it's very hard to come up with a clearly defensible standard for insanity."
"The insanity defense is not a common defense," he added. "It's raised pretty rarely and it works even more rarely."
The theory behind punishment is that it should offer harsh consequences for wrongful acts. But if a wrongdoer didn't understand what he was doing -- because, say, he believed he was following orders from God or because hallucinations convinced him that a terrible act was necessary to save the world -- it is hard to justify condemnation. For hundreds of years, legal systems have struggled with how to handle cases like these.
In most Western countries today, including Norway and most of the United States, defendants are assessed twice during the legal process. One evaluation determines whether they are competent to stand trial, and the term "sanity" is often loosely and inaccurately thrown around at this point, Schopp said. If a defendant is too mentally unstable at the time when a trial would begin, he will go to a correctional mental health facility, where treatment continues until he is deemed fit to interact in a courtroom.
Once a trial begins, attorneys may propose the insanity defense if there is reason to question whether the defendant's psychological state rendered him unable to understand the ramifications of his actions when he committed the crime. This type of defense acknowledges guilt. But it questions whether the wrongdoer should face criminal punishment, such as a jail term, or instead end up in a mental hospital.
To investigate an insanity defense, court-appointed clinical experts conduct direct psychological evaluations. They compile a health history. And they interview a wide variety of people who have interacted with the defendant in the past. The goal is to determine whether the defendant had a true grip on reality or not when he did what he did.
There is not always an easy answer. So far, for example, one psychiatric evaluation diagnosed Breivik with psychotic paranoid schizophrenia that afflicted him during the attacks last summer, and continues to affect him today. A separate evaluation determined that he has narcissistic personality disorder but was sane during the attacks.
Personality disorders are common in people who commit crimes, Schopp said. But without additional diagnoses of psychoses, such as schizophrenia or manic-depressive disorder, people are usually considered responsible for their actions.
"Consider Timothy McVeigh who killed 170 people when he blew up the Federal building in Oklahoma City, or the 9/11 hijackers who killed 3,000 people," he said. "There's no evidence that any of those folks were severely impaired. They had political and personal objectives and beliefs, but there was nothing that interfered with competency to proceed or accept guilt or face execution."
If the insanity defense works -- as it did in the 1981 trial of John Hinckley, who attempted to assassinate Ronald Reagan -- the perpetrator is committed to a forensic psychiatric center, where periodic reviews assess whether he should remain there. With a ruling of "not guilty by reason of insanity," an eventual release is theoretically possible, though getting out is extremely difficult for people who have committed the most severe crimes.
A common fear among the public is that criminals will fake their way into an insanity defense to get off easy, said N.G. Berrill, a forensic neuropsychologist at the John Jay College of Criminal Justice and executive director of the New York Center for Neuropsycholgy & Forensic Behavioral Science.
But this kind of scenario is unlikely to happen, partly because criminal psychiatric hospitals are not desirable places to be.
"It's like bedlam, it's horrible," said Berrill, who has worked in such facilities. "You sometimes have the most disturbed, most dangerous people all housed under one roof."
"At night, they might be locked in their rooms, but in the daytime, there are community rooms," he added. "There are random acts of violence that might be the result of paranoid delusions or hearing voices or misperceiving cues in the environment. These places are not better [than jails] by any stretch of the imagination."
In the United States, the insanity defense is evoked in less than one percent of criminal trials, according to reporting by Frontline. It is successful a minority of the time. If a crime is particularly upsetting to the public and the jury, Berrill suspects, the likelihood diminishes that an insanity defense will be successful.
"You can be mentally ill and psychiatrically disturbed but still not be insane," he said. "I'm not saying these people are healthy, of course. They are toxic human beings. They are malevolent, dangerous, predatory. There are a million words you can use, but at the end of the day, they are still responsible for their actions."