Miles's blog

If you want to know the difference between the criminal justice systems in Europe and those in America, a few stories from the past week exemplify how widely divergent these systems are when it comes to sentencing.  Anders Breivik was found sane and sentenced to 21 years in prison for killing 77 people in Norway.  Had he been found insane he would have faced an indeterminate stay in a mental institution.  And today a woman in Belgium who helped her husband kidnap and sexually assault children, which resulted in two of them starving to death, has been released after serving 15 years of her 30-year sentence.  Can you imagine the same results in America?

James Holmes killed 12 people, and wounded 58.  He probably will face a trial seeking the death penalty, but even if not, any conviction will lead to a sentence of life without parole.  Unlike Norway, the defense of Holmes will try to show, I assume, that he was insane because that gives him a greater chance at release.   For Breivik, sanely killing 77 people allows him a chance to be released in a mere 21 years when he will still be younger than I am now.  Think about that.  Insanity for him meant the possibility of being held for the rest of his life under Norwegian law.  This put the prosecution in the difficult position of showing that a man who committed a calculated mass murder was out of his senses.  I don’t know the definition of insanity in Norway, but under our law Breivik certainly seemed to understand the difference between right and wrong.  (There was no question he formed intent to kill.)  Had he been crazy, the government of Norway could have put him away to protect the community, but as a sane mass murderer, their system is so light on punishment that his penalty is no more than perhaps a quarter of his normal life span.

In America, we look at things very differently.  Should Holmes be found sane our system will extract the ultimate penalty, either execution or life without parole.  We don’t even consider the possibility of rehabilitation for this kind of crime.  Anyone who kills that many people, and attempts to kill dozens more, has forfeited his right to live among us, if he did so knowing full well what he was doing and that such conduct was wrong.  We demand punishment as justice.

But should his lawyers convince the jury that when he murdered he fit under the legal definition of insanity, then he will be found not guilty.  Our system exonerates those who commit crimes while under the influence of mental illness.  Punishment is replaced with treatment.  Holmes would be required to go to the state hospital (which has some fancy-sounding name now), but only because that is seen, in the eyes of the law, as the place where he can best receive treatment.  Treatment is performed with a goal of making criminals (or rather those acquitted of crimes) mentally healthy, so that they do not present a danger to themselves or others.  Those found not guilty by reason of insanity are subject to release almost immediately in theory, and even the most dangerous mentally ill patients face release at some point under some circumstances.

Unlike Breivik, Holmes will seek to look, act, and be found insane.  Unfortunately for the prosecution, it carries the burden under Colorado law of proving Holmes was sane beyond a reasonable doubt.  I believe Colorado is the only state in the nation where the prosecution carries this burden.  In many states the defendant must prove that he was insane, a completely constitutional requirement.  Colorado’s burden on the prosecution was first derived from the state constitution in a 1960-era Supreme Court case.  I believe it is now codified in state statute. 

Overcoming such a burden is never easy.  In some states should experts disagree about insanity a tie goes to the prosecution.  In Colorado, all close calls inure to the benefit of the defendant.  Holmes has a much better chance of being found insane than Breivik, despite the latter’s clear showings of some sort of mental illness.  (He had to kill, he claims, to protect Norway from immigration issues.)  Holmes, referred for mental health counseling, according to news reports, can use his prior threatening behavior to show he could not appreciate the wrongfulness of his actions despite booby-trapping his apartment knowing that the police would eventually respond.

In Norway, and perhaps Belgium, Holmes would be seen as some sort of misguided young man who should be allowed to rejoin society in a couple of decades while he would still be in his 40s.  In Colorado, however, he may be found to be no more than a sick man who would benefit from treatment, allowing him to be released at some point.  Time will tell whether Holmes’s lawyers are successful in an insanity defense, but if they are, Holmes and Breivik will have something in common aside from being mass murderers—they might both get out and one day be your neighbor.Ho