Anders Breivik found sane and sentenced to maximum term of detention

[The Iceman of the North]

Someone punching someone else is hardly a 'danger to society', but preventive detention doesn't really have a maximum sentence unlike regular prison jails.

[Former Lord of Winterfell]

Someone punching someone else is hardly a 'danger to society', but preventive detention doesn't really have a maximum sentence unlike regular prison jails.

Okay, then I do have a problem with that. Or rather, I'm glad that's not the law here.

[The Iceman of the North]

How is that different from life with parole?

[Lord Toblerone]

When is preventive detention used? Is there a clear criteria for which crimes people can be sentenced to preventive detention?

Can other forms of punishment be extended in a similar way?

[Mme Erzulie]

I find it slightly ironic that an American bemoans the Norwegian prison and sentencing system.

[Former Lord of Winterfell]

How is that different from life with parole?

Because life with parole can only be imposed for a very few crimes. Seems that unlimited preventative detention can be imposed for anything the judge seems worthy.

[Lord Toblerone]

Because life with parole can only be imposed for a very few crimes. Seems that unlimited preventative detention can be imposed for anything the judge seems worthy.

You don't know that. You're not familiar with how the Norwegian legal system works, any more than I am.

[The Iceman of the North]

When is preventive detention used? Is there a clear criteria for which crimes people can be sentenced to preventive detention?

To quote from the actual law:

§ 39c. When a time-limited penalty is not considered sufficient to protect the community, preventive detention can be imposed instead of a prison sentence if the conditions of paragraph 1 or 2 are met:

1. Offender found guilty of having committed or attempted to commit a serious violent crime, sexual offenses, detention, arson or other serious crime that violated someone else's life, health or freedom, or exposed these legal benefits of danger. In addition, it is believed to be an obvious danger that the offender will again commit such a crime. Risk assessment should be given to the commission of criminal offenses or attempt compared especially with offender behavior and social and personal functioning. Particular emphasis is placed on whether the offender has previously committed or attempted to commit a crime mentioned in the first sentence.

2. Offender is now found guilty of having committed or attempted to commit a misdemeanor of the same species as mentioned in paragraph 1, and has previously committed or attempted to commit a crime therein. In addition, it is believed to be a close relationship between the former and the now committed crime and the danger of a return to a new offense referred to in paragraph 1 is likely to be particularly obvious.

Where the accused was under 18 years at the time the acts, preventive detention should not be imposed unless there are extraordinary circumstances.

Because life with parole can only be imposed for a very few crimes. Seems that unlimited preventative detention can be imposed for anything the judge seems worthy.

Do you make the same ridiculous assumption that someone convicted of murder can get sentenced to community service?

[Lord Toblerone]

§ 39c. When a time-limited penalty is not considered sufficient to protect the community, preventive detention can be imposed instead of a prison sentence if the conditions of paragraph 1 or 2 are met:

1. Offender found guilty of having committed or attempted to commit a serious violent crime, sexual offenses, detention, arson or other serious crime that violated someone else's life, health or freedom, or exposed these legal benefits of danger. In addition, it is believed to be an obvious danger that the offender will again commit such a crime. Risk assessment should be given to the commission of criminal offenses or attempt compared especially with offender behavior and social and personal functioning. Particular emphasis is placed on whether the offender has previously committed or attempted to commit a crime mentioned in the first sentence.

2. Offender is now found guilty of having committed or attempted to commit a misdemeanor of the same species as mentioned in paragraph 1, and has previously committed or attempted to commit a crime therein. In addition, it is believed to be a close relationship between the former and the now committed crime and the danger of a return to a new offense referred to in paragraph 1 is likely to be particularly obvious.

Where the accused was under 18 years at the time the acts, preventive detention should not be imposed unless there are extraordinary circumstances.

And then there's Larry Murphy:

http://en.wikipedia....Irish_criminal)

When this man was released there was a large media furore that I personally was angered by as I regarded it as hysterical scaremongering.

If we had similar provisions in Irish law, Larry Murphy might still be in prison.

[Former Lord of Winterfell]

You don't know that. You're not familiar with how the Norwegian legal system works, any more than I am.

That's why I asked Iceman of the North. Read the thread -- I've been very clear I don't know anything about the Norwegian system other than what folks have said here. He said it wasn't limited to murder, and there were no temporal limits on it.

Do you make the same ridiculous assumption that someone convicted of murder can get sentenced to community service?

I don't understand your point.

I asked if it was the possibility of unlimited preventative detention was limited to murder, and you said no. You didn't say anything about whether any other limitations existed, which I (apparently in error) assumed you would if such existed. The law personally reads a bit mushy to me, but then, I'm not a Norwegian lawyer.

[Lord Toblerone]

That's why I asked Iceman of the North. Read the thread -- I've been very clear I don't know anything about the Norwegian system other than what folks have said here. He said it wasn't limited to murder, and there were no temporal limits on it.

He didn't say there were no limits on it, he said it wasn't limited to murder. (eta: ah, temporal limits, sorry).

The legal code quoted says violent crime that violated someone's life, health or freedom.

The picture is: Breivik receives his sentence of 21 years. At the end of this sentence, a judge decides whether to release him, or imprison him for a further 5 years. then the same review occurs again, and this can go on for the rest of his life.

I don't understand your problem.

[The Iceman of the North]

The law personally reads a bit mushy to me, but then, I'm not a Norwegian lawyer.

What do you mean by mushy? Note that this is just my quick translation of the actual law.

[Mlle. Zabzie]

Here's my visceral problem with it (which I think is FLOW's visceral reaction as well): the idea seems at the very least in tension (if not in direct conflict) with the provisions of our consitution that preserve the privilege of the writ of habeas corpus (unless suspended by the executive in extraordinary circumstances).

ETA: That doesn't mean that the Norwegian system is bad, but the habeas corpus privilege is a pretty fundamental building block of US legal rights that I think most of us who sat through US law school feel is pretty sacred and important (whether rightly or wrongly).

[Former Lord of Winterfell]

What do you mean by mushy? Note that this is just my quick translation of the actual law.

Vague, ambiguous. It literally applies to:

"attempts to commit...a serious crime that violated someone else's life, health, or freedom, or exposed these legal benefits of danger."

So what's "serious"? And doesn't any form of assault violate someone else's "health"? Does grabbing someone by the arm and holding them in place violate their "freedom"? So it's just....vague. To give the counterpoint, in the U.S., the equivalent type of law likely would omit those kind of descriptions, and instead list specific other crimes, by code number, that would qualify.

Now, I'm not versed in Norwegian law at all, so perhaps there is all this legal background of which I am unaware that removes a lot of the discretion that seems to be built into that standard.

ETA:

On Zabzie's point, my concern really is with clarity, and there being some objective limitation on holding someone that is proportionate to the crime actually committed. The standard reads to me (and again, a Norwegian lawyer may well be able to explain why that isn't true) like it would give an awful lot of discretion to hold a person perceived to be dangerous indefinitely. Even if they've never actually committed a violent crime (attempts are enough), and even if the crime they attempted to commit was not murder, kidnapping, or rape.

[The Iceman of the North]

Vague, ambiguous. It literally applies to:

"attempts to commit...a serious crime that violated someone else's life, health, or freedom, or exposed these legal benefits of danger."

So what's "serious"? And doesn't any form of assault violate someone else's "health"? Does grabbing someone by the arm and holding them in place violate their "freedom"? So it's just....vague. To give the counterpoint, in the U.S., the equivalent type of law likely would omit those kind of descriptions, and instead list specific other crimes, by code number, that would qualify.

Not being a lawyer, I take it for granted that these terms are well defined. You do have terms like "aggravated assault" in US law?

Now, I'm not versed in Norwegian law at all, so perhaps there is all this legal background of which I am unaware that removes a lot of the discretion that seems to be built into that standard.

These are specific crimes as defined elsewhere in the penal code.

On Zabzie's point, my concern really is with clarity, and there being some objective limitation on holding someone that is proportionate to the crime actually committed. The standard reads to me (and again, a Norwegian lawyer may well be able to explain why that isn't true) like it would give an awful lot of discretion to hold a person perceived to be dangerous indefinitely.

How long someone can be detained are defined elsewhere in the penal code. When considering an extension the nature of the crime is obviously taken into account.

Even if they've never actually committed a violent crime (attempts are enough), and even if the crime they attempted to commit was not murder, kidnapping, or rape.

They obviously must have committed a crime in the first place. Attempting to commit a crime is only illegal under certain circumstances, again well defined elsewhere in the penal code.

[The Iceman of the North]

BTW, FLOW, as the only Norwegian lawyer on the board that I know of, doesn't post too much these days, and since there appear to be very little actual information of preventive detention in Norway in English online, here is a link to Norway’s 7th Report to the Committee Against Torture (pdf), submitted about a week before the events last year.

On page 6 (Article 2, point 4), there's the Norwegian response to concerns from CAT relating to preventive detention.

[Former Lord of Winterfell]

BTW, FLOW, as the only Norwegian lawyer on the board that I know of, doesn't post too much these days, and since there appear to be very little actual information of preventive detention in Norway in English online, here is a link to Norway’s 7th Report to the Committee Against Torture (pdf), submitted about a week before the events last year.

On page 6 (Article 2, point 4), there's the Norwegian response to concerns from CAT relating to preventive detention.

Oh, well, shit. My apologies. The fact that a U.N. body also saw fit to raise concerns about this provision tells me that I am definitely on the wrong side of this.

In all seriousness, though, the Norwegian response to those concerns is pretty meaningless. They essentially say "we think it's a good idea". Please don't get me wrong -- I'm not accusing Norway of being some kind of police state. I'm making more technical lawyer-like observations over things that would give me concern. I can say that if there was an equivalent provision introduced into U.S. law, our criminal defense lawyers, American Civil Liberties Union, and loads of other folds would go apeshit, and claim that it is sufficiently vague that it would give the government the power to permanently imprison all sorts of people who didn't actually commit any crimes (again, going on the word "attempt" here).

Just to give a parallel, there is outrage by some over whether we should be able to detain indefinitely non-U.S. citizens seized on a battlefield because of a belief they will fight us again. The only reason the whole country didn't go apeshit is because those provisions are not applicable to U.S. citizens. So you've essentially got a provision in your law that would be castigated violently if it existed in the U.S..

Again, that's not saying in any way that your government actually abuses those powers. In fact, I assume it doesn't. But the existence of those powers is interesting from a U.S. perspective.

[Lummel]

Here's my visceral problem with it (which I think is FLOW's visceral reaction as well): the idea seems at the very least in tension (if not in direct conflict) with the provisions of our consitution that preserve the privilege of the writ of habeas corpus (unless suspended by the executive in extraordinary circumstances)...

I'm surprised that you can't let that go considering that you must intellectually know that Norway isn't a country that shares the English common and statute law tradition and that it will have it's own system of legal protections for individuals however different and alien that may be from the English tradition.

[The Iceman of the North]

Oh, well, shit. My apologies. The fact that a U.N. body also saw fit to raise concerns about this provision tells me that I am definitely on the wrong side of this.

Did you actually read the answer?

[RWHamel]

So, he'll be out in 10 with good behavior.