The Anders Behring Breivik Mass Murder Case: The Insanity Defense in Norway Versus the United States

      The Anders Behring Breivik Mass Murder Case

     On July 21, 2011, 32-year-old Anders Behring Breivik set off a bomb in Oslo, Norway that killed eight. Mr. Breivik, later that day, opened fire at a summer camp on Utoya Island, killing sixty-nine people, most of whom were children. Breivik's bombing and shooting spree also injured 151 in the city and on the island. The mass murderer surrendered without incident to a SWAT team that showed incredible restraint.

     After confessing to the bombing and shooting spree, Mr. Breivik told his interrogators that he was a commander of a resistance movement aiming to overthrow European governments and replace them with "patriotic" regimes that would deport Muslim immigrants.

     A pair of psychiatrists, on thirteen visits, spent 36 hours talking with Breivik. The doctors concluded that because he was a paranoid schizophrenic he was not a proper candidate for conviction and imprisonment as a criminal. As a result, prosecutors decided not to try him for mass murder. Instead, he would be adjudicated insane and sent to a mental institution for an indeterminate period.

      Under Norway's insanity defense doctrine, defendants who "lost touch with reality" are not considered criminals because their "crimes" are symptoms of the killer's mental illness. Breivik's victims, in other words, were killed by paranoid schizophrenia, not an evil, cold-blooded murderer.

     Norwegian critics of the decision not to try Breivik as a criminal defendant called attention to Breivik's extensive planning and gruesome efficiency in the slaughter of his helpless victims. In the opinion of the Swedish forensic psychiatrist Anders Forsman, Breivik carried out his murderous mission in a rational way. He was, in Forsman's words, an "efficient killing machine."

      In January 2012, under intense public pressure, the Oslo District Court ordered a second expert panel to evaluate Breivik's mental state at the time of the killings. In April 2012 the second psychiatric evaluation determined that Mr. Breivik possessed an antisocial personality disorder and narcissistic personality disorder. He was, in other words, not a psychotic who had lost touch with reality. 

     In August 2012, following Breivik's mass murder conviction, the judge sentenced him to 10 to 21 years in prison, Norway's maximum sentence. Had he been adjudicated insane the mass murderer could have been shut away in a mental institution for life.

     The Insanity Defense in the U.S.

    Had Anders Breivik embarked on his murderous rampage in the United States he'd have almost no chance of successfully raising the insanity defense. This is because in America most states operate under the M'Naghten Rule. Under this doctrine of legal insanity, a criminal defendant is not insane unless: "At the time of the commission of the act, the defendant 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 what he was doing was wrong." Popularly referred to as the "right/wrong test," a defense attorney has to prove by a preponderance of the evidence that his client did not realize the act in question was wrong. Regardless of how mentally ill criminal defendants are, almost all of them know that what they are doing is wrong. In other words, in most states, merely because a criminal defendant has been diagnosed a paranoid schizophrenic is not enough to support the insanity defense. For this reason very few defendants succeed in being found not guilty by reason of insanity. In the United States the law requires a degree of mental impairment that rarely exists in psychiatric medicine. 

     Serial killers like Ted Bundy are rarely found not guilty by reason of insanity. The Unabomber Ted Kaczinsky, diagnosed as a paranoid schizophrenic, was convicted of murder in 1996 and sent to prison. 

     In the United States jurors are not comfortable with finding mentally ill serial killers and mass murderers not guilty for any reason. They don't completely trust the social scientific findings of psychiatrists who testify for the defense. And jurors don't want to replace the concept of good and evil with sane and insane. Serial killers and mass murderers, to jurors, while obviously mentally unbalanced, are still evil and dangerous people. In America, evil people who murder are going to be punished criminally. That doesn't mean, however, that they don't receive some psychiatric treatment (drugs) in prison. But it does mean, whether medically "rehabilitated" or not, they are never going to be free.

     John Hinckley Jr., the man who shot President Ronald Reagan in 1981, was found not guilty by reason of insanity. This is because he was tried in federal court which applies a less demanding standard of legal insanity. In 2016 Hinckley was released permanently from the mental institution so he could live with or near his mother in Williamsburg, Virginia. 

Alan Randall: Bad People Belong in Prison

     During the winter of 1974, 16-year-old Alan A. Randall committed more than a dozen burglaries in and around Summit, Wisconsin, a town of 4,000 in Waukesha County. In January 1975 he broke into the Summit Police Department. When officers Wayne Olson and Robert Atkins pulled up to police headquarters in their patrol car, Alan Randall, instead of either giving himself up or making a run for it, opened fire on the officers, killing them both. The burglar-turned cop killer drove from the scene in the dead officers' bullet-ridden police vehicle. That night he committed another burglary then went home to bed.

     Tried as an adult two years later the jury found Alan Randall guilty of two counts of first-degree murder. (He had also been charged with murdering his neighbor, a man named Ronald Hoeft. Due to procedural problems with the prosecution in the Hoeft killing, that case was dropped.) Because Randall's attorney had raised the defense of legal insanity the trial went into a second phase centered around the issue of his mental state at the time of the murders. The jury, having heard testimony from psychiatrists who diagnosed Randall of having a personality disorder, found him not guilty by reason of insanity.

     Today a criminal defendant with a so-called personality disorder would not be adjudged legally insane because people with this disorder are not psychotic or in any way delusional. They are fully aware of what they have done and know that the act of murder is wrong. In other words, these defendants are not insane, they are bad. Ted Bundy had a personality disorder, John Hinckley was mentally ill.

     Having been declared legally insane, Alan Randall, rather than being sent to prison for a specific period of time was packed off to a mental institution for an indefinite period. He would be eligible for release when psychiatrists said he was cured of his mental illness. Since Randall was not insane he was at least in theory eligible for release the day they admitted him into the Central State Hospital in northeast Wisconsin.

     In 1980 doctors took Mr. Randall off his anti-psychotic medication. A model patient--the best mental patients are the ones who aren't insane--Mr. Randall was transferred to the Mendota Mental Institution in Madison where he was allowed to work full time at an art gallery.

     In 1989 Alan Randall's attorney began petitioning the court for his release on grounds the patient had been cured of the mental illness that had caused him to commit the murders fourteen years earlier. Randall's psychiatrists dropped the personality disorder diagnosis and considered him sane and ready to re-enter society.

   In 1990 and 1991 judges denied Randall's quest for freedom. In 1992, psychiatrists who had plenty of real mental patients to deal with stopped spending time with him altogether.

      Alan Randall lost another bid for freedom in 1995. Finally, in April 2013, after 36 years in a mental institution a six-member jury recommended that the 54-year-old cop killer be released back into society. Since Mr. Randall had not been sent to the mental institution to be punished, the issue wasn't whether he had been punished enough. Because he wasn't crazy he didn't belong in a mental institution in the first place.

    While Alan Randall's release order did not create public outrage, some of the murder victims' relatives said they were disappointed. A widow of one of the murdered officers told reporters that in her opinion Mr. Randall, who had never publicly apologized for the murders, was not contrite. Waukesha District Attorney Brad Schimel said there was no basis upon which the state could appeal the jury's recommendation to free Mr. Randall.

     Alan Randall's attorney Craig Powell assured reporters that his client posed no threat to the community. "He's a much different person now than when he was a kid." Had Alan Randall been sentenced to prison in 1977 instead of being committed to a mental institution he would have been eligible for parole as early as 1992.

     In September 2013, Alan Randall, the cop killer who lived 36 years in an insane asylum, became a free man. 

Abolishing The Insanity Defense

     On March 23, 2020, the United States Supreme Court, in Kahler v. Kansas ruled that it is not unconstitutional for a state to abolish its insanity defense. The insanity defense allows a criminal defendant to be found not guilty due to a mental illness that deprived the offender of knowing right from wrong. In other words, the defendant was too mentally impaired to form criminal intent. Instead of being guilty of the crime, the defendant is found not guilty by reason of insanity. These defendants, instead of serving a sentence in prison, are committed to a mental hospital where they remain until doctors determine they are sane enough to return to society. Because juries are skeptical of the insanity defense, it is successful in only one percent of insanity defense cases.

     In November 2009, in a Kansas killing rampage, James Kahler murdered his two daughters, his estranged wife, and his wife's mother. His attorneys claimed that he was insane, but because the state had made the insanity defense unavailable in 1995, Kahler was convicted of four-counts of first-degree murder and sentenced to death. In 2011, Kahler's attorneys challenged the constitutionality of the elimination of the insanity defense. The case worked its way up to  the United States Supreme Court which ruled 6 to 3 in favor of the state. Justice Elena Kagan wrote the majority opinion.

     While Kahler v. Kansas allows states to abolish the not guilty by reason of insanity defense, defendants can present evidence of mental illness to establish a lack of criminal intent to reduce say, first-degree murder to a lesser homicide offense. Moreover, it can be used post-conviction at a sentence hearing as a mitigating factor.

The Alton Alexander Nolen Beheading Murder Case

     The 911 call came in at four-thirty in the afternoon on Thursday September 25, 2014 from an employee of the Vaughn Foods distribution warehouse in Moore, Oklahoma located ten miles south of Oklahoma City. The emergency caller, speaking to someone at the scene and overheard by the dispatcher said, "Shut the doors!" Then to the dispatcher said, "We have someone attacking someone in the building. Can you hear this in the background? That's a gunshot."

     When officers with the Moore Police Department entered the Vaughn Foods building they encountered a bloody scene of horrific violence. Coleen Hufford, a 54-year-old employee, had been repeatedly stabbed and beheaded. Traci Johnson, a fellow employee, had been stabbed as well but was still alive. Alton Alexander Nolen, the 30-year-old man holding the knife, had been shot once. He was alive but unconscious.

     Earlier that afternoon after being fired from the food processing and distribution plant, Alton Nolen left the building in a huff, climbed into his car and drove erratically around the company parking lot. With a knife in hand he re-entered the facility through the main entrance. Mr. Nolen walked through the front office into the shipping area then into the customer service office. There he encountered Colleen Hufford and Traci Johnson, employees who he had no reason to hate or punish.

     Mark Vaughn, the corporation's chief operating officer rushed to the scene armed with a rifle. He arrived too late to save Colleen Hufford and almost didn't get there in time for Traci Johnson. Before Nolen had the chance to behead his second victim Mr. Vaughn shot and wounded him.

     Alton Nolen was not a stranger to local law enforcement. In the evening of October 1, 2010, while accompanied by his 29-year-old girlfriend and her 2-year-old son, he drove his white Chevrolet Impala on Oklahoma Highway 33. State Trooper Betsy Randolph pulled him over after she noticed that Nolen's paper license plate looked like a fake. The officer received confirmation of this after she radioed-in the plate number.

     Nolen, when asked by Trooper Randolph to produce his driver's license said he didn't have it with him. "Do you have a valid driver's license," she asked.

     "No," he replied.

     Seated next to the trooper in the patrol car parked along the curb on a residential street, Mr. Nolen said that he didn't want to go back to jail and denied having outstanding warrants for his arrest. When the officer entered his name and date of birth into her computer she knew he lied. There were several outstanding warrants for his arrest including one for failing to appear in court on a cocaine charge. The trooper had no choice but to take Nolen into custody.

     Trooper Randolph, after cuffing Nolen's right hand ran into resistance when he tried to call his girlfriend on his cellphone. As the officer reached for her expandable baton he pushed her away and jumped out of the police vehicle. The trooper chased him on foot but lost him amid a group of houses in the neighborhood.

     Following a 12-hour manhunt that included a helicopter, police dogs and officers from four law enforcement agencies, Alton Nolen was taken into custody. A local prosecutor charged him with assault and battery on a police officer and escape from detention.

     Early in 2011, following a plea deal, the judge sentenced Nolen to six years on the cocaine offense, two years for escaping police custody and two years for assaulting Trooper Randolph. Although he faced up to ten years behind bars he served 18 months in prison followed by six months in a halfway  house.

     While in prison Nolen converted to Islam. In April 2013, a month after leaving the halfway house, he began posting messages on Facebook under the name Jah Keem Yisrael. His postings were clearly anti-American. He ran  photographs of Osama bin Laden and the burning trade towers. He also had several Muslim Facebook friends from the U.S., England and the Middle East.

     Prior to losing his job at the Moore, Oklahoma food processing plant Nolen tried to covert fellow employees to Islam.

      On Saturday September 27, 2014, two days after the workplace murders, detectives questioned Nolen after he regained consciousness. He was charged with first-degree murder and aggravated assault. Until investigators determined the principal motive for the beheading--anger at being fired or striking a terroristic blow against America--the attacks on these innocent women were handled as a criminal matter. For many the fact that Nolen was a militant Muslim who beheaded a woman was enough to justify treating the murder as an act of terrorism.

     In May 2016 Nolen offered to plead guilty to first-degree murder. He said he wanted to be executed by lethal injection. Judge Lori Walkey rejected the defendant's guilty plea and ordered a hearing to determine his mental competency.

     In August 2016 a prosecution psychologist testified that Alton Nolen had a personality disorder and was therefore not psychotic. A neuropsychologist for the defense testified that Nolen was a schizophrenic with a "thought disorder."

     At the conclusion of the mental competency hearing Judge Walkey rejected Mr. Nolen's guilty plea. 

     On September 11, 2017 Mr. Nolen, having been ruled mentally competent, went on trial for murder. The jury on September 30, after two hours of deliberation, found him guilty of first-degree murder. Judge Lori Walkley, following the jury's recommendation, sentenced him to death by lethal injection.

Leatrice Brewer: The Woman Who Killed But Didn't Murder Her Three Children

     In 2002 21-year-old Leatrice Brewer, while living with her grandmother, had her first baby, a girl she named Jewell. Leatrice and the baby's father Ricky Ward broke up shortly after the birth. Leatrice and her grandmother, Maebell Mickens, lived in New Cassel New York, a suburban community on Long Island 20 miles east of New York City.

     Brewer's grandmother and her mother Pearly Mae Mickens were mentally ill drug addicts. Leatrice, already showing signs of insanity, worked as a filing clerk at a law firm. She also had a part time job as a sales assistant at a Kohl's department store.

     Not long after the birth of her daughter Jewell, Leatrice began dating a man from Queens named Innocent Demesyeux. Less than a year later she gave birth to their son Michael. Leatrice continued to live with her grandmother, Maebell Mickens. Maebell, to help support her drug habit, was not above panhandling on the streets of New Cassel. At this time Leatrice continued to struggle with severe bouts of depression and drug dependancy.

     In 2006 Leatrice Brewer had a second child with Innocent Demesyeux, a boy who inherited his father's unusual first name. Shortly after Innocent's birth Maebell Mickens kicked Leatrice and her children out of her house.

     Leatrice Brewer and her three kids moved in to a small second-story apartment on Prospect Street in New Cassel. Without financial help from the children's fathers Leatrice continued to hold down two jobs. She also received rental assistance, food stamps and a stipend from the federal Women, Infants and Children program.

     As early as 2003 caseworkers from the state's Child Protective Service agency received complaints filed by neighbors and family members accusing Leatrice of child neglect. Every so often one of the fathers would call the local police to report that Leatrice, a six-foot woman who weighted more than 200 pounds, had hit one of the children. Notwithstanding these complaints she never lost custody of Jewell, Michael or Innocent.

     By 2007 Leatrice Brewer was too drug-addled and mentally ill to hold down a job. For days she was absent from the apartment, leaving the child-raising to her 6-year-old daughter Jewell.

     In late February 2008 Leatrice called 911 and informed the dispatcher she had stabbed Jewell and drowned her in the bathtub. The distraught mother said she had also drowned Michael and Innocent. After talking to the 911 dispatcher she tried to kill herself by swallowing a concoction of household cleaning chemicals. When it appeared she couldn't commit suicide by poisoning herself Leatrice Brewer jumped out of her second-story bedroom window.

      The mother's second attempt to kill herself also failed. Instead of the morgue she ended up at the Nassau University Medical Center with an injured back. The next day a county prosecutor charged her with three counts of murder.

     While being treated at the hospital Leatrice Brewer told a visiting relative that "the voices took control and I had to do it."

     According to a battery of court-appointed psychiatrists, Leatrice Brewer suffered from a major depressive disorder that caused her to kill her children. She had been under the delusion that killing her kids would save them from something worse than death--the effects of voodoo.

     In 2009 Leatrice Brewer pleaded not responsible by reason of mental disease or defect. The judge sent her to a state psychiatric facility where the 28-year-old would reside and be treated until mental health experts and drugs made her sane enough to rejoin society.

     The Brewer case came back into the news in 2013 when Leatrice petitioned a judge for her share of her children's $350,000 estate. (I do not know the source of this wealth. Perhaps a wrongful death lawsuit had been filed against the state on the children's behalf that resulted in a court settlement.) Normally, under New York's Son of Sam law, convicted criminals are prohibited from profiting from their crimes. But in this case, Brewer, rather than being convicted of triple murder, had been found not guilty by reason of insanity. This raised the legal question of whether or not, under these circumstances, she was entitled to the money.

     In November 2013 a judge ruled that pursuant to the Son of Sam law Leatrice Brewer was not entitled to a piece of her dead children's estate.

     Leatrice Brewer remains a patient at the Mid-Hudson Forensic Psychiatric Center at Long Island New York. 

The Insanity Ploy

     In the 1957 musical West Side Story, Stephen Sondheim parodied what then was the current thinking about juvenile delinquency in the song, "Gee, Officer Krupke." Delinquents were punks because their fathers were drunks. They were misunderstood rather than no good. They were suffering from a "social disease," and society "had played them a terrible trick." They needed an analyst, not a judge, because it was "just their neurosis" acting up. In short, their criminal behavior was regarded as symptomatic of a deep-seated psychological or sociological problem. Little has changed since then in terms of deeply ingrained beliefs about the causes of crime…

     When a person commits a particularly sordid crime, his sanity may be questioned. Three men pick up two girls who are thumbing a lift. A joyride turns into a nightmare when the teenagers are driven to a desolate mountainous area where they are bound and repeatedly raped. Two of their tormentors dig a hole and tell them to say their prayers. However, the men decide to prolong the torture and take the girls to an apartment where they brutalize them again. The girls are saved by a suspicious neighbor who calls the police. Eventually, the court considers the rapists to be "mentally disordered sex offenders" and sends them to a psychiatric hospital, where they spend less time than one-third of the time they would have spent in prison.

     Criminals learn to fool the psychiatrists and the courts in order to serve "easy time" in a hospital with the prospect of getting out more quickly than they would from a prison. From other criminals and from their attorneys, even unsophisticated street criminals learn the ploy of insanity. The game is for the criminal to convince others that he is sick, so that he can beat the charge. After he is admitted to the hospital, he plays the psychiatric game of mouthing insights and behaving properly so that he can convince the staff that he is recovering and deserves to be released.

Stanton E. Samenow, "The Basic Myths About Criminals," in Criminal Justice?, Robert James Bidinotto, ed., 1994 

The Insanity Plea

The insanity defense is used in less than 1 percent of a criminal trials, and has a success rate of 26 percent. Of the successful insanity defense cases, 40 percent of the defendants had been previously diagnosed with a serious mental illness.

Shopping For the Right Trial Psychiatrist

      How did psychiatry come to play a crucial role in criminal trials? Why do defense and prosecution psychiatrists often disagree drastically in their expert opinions? What good, if any, does psychiatry do in our courts? To begin to answer these questions, we must first look at how the insanity defense operates.

     Once the defense lawyer decides with the client to enter a plea of not guilty by reason of insanity, the attorney calls in one or more psychiatrists to examine the defendant. Even though the psychiatrists may question the accused weeks or months after the act was committed, they are expected to determine exactly what the defendant was thinking during the moments surrounding the crime. Most particularly, did the accused know what he or she was doing was against the law or wrong? If so, was a choice made to commit the crime anyway, or was the behavior beyond the defendant's control? Was he or she driven to it by mental disorder? 

     Psychiatrists have no tests to reconstruct a past state of mind, but they nonetheless offer an opinion, because they are convinced that their "clinical skills" allow them to expertly determine questions of legal sanity. If they decide the defendant was legally insane at the moment of the crime, the defense lawyer has reason to go forward with an insanity plea. If they decide differently, the defense attorney may decide to start over by hiring another psychiatrist to examine the defendant. A psychiatrist who will reach the desired conclusions can usually be found. Neither judge nor jury learns of the prior psychiatrists, only of those the defense lawyer calls to testify that the defendant was legally insane at the moment of the crime.

Lee Coleman, "The Insanity Defense," in Criminal Justice?, Robert James Bidinotto, editor, 1994 

A Forensic Psychologist On the Insanity Defense

My forensic workup is a good deal more intensive than that of most other forensic psychologists, but anything less would not satisfy my standard for formulating an opinion "with a reasonable degree of psychological certainty," which is what New York's insanity defense statute calls for. What goes on in the mind of a murderer at the moment of his crime will always remain unknowable. But I believe it is my professional mandate to make the most thorough, informed, and educated judgment I can. [Critics of this branch of psychology would call it an educated guess. Forensic psychologists routinely testify against each other in insanity defense cases.]

Dr. Barbara R. Kirwin, The Mad, The Bad, and the Innocent, 1997