To many Americans, Anders Beiring Breivik’s ongoing journey through the Norwegian criminal justice system could hardly seem more foreign.
On Wednesday, a Norwegian court ruled that the man who was convicted in 2012 of killing eight people in an Oslo bombing, then murdering another 69 at a youth retreat was now himself the victim of human rights violations at the hands of the government.
This for a man who received a sentence of 21 years, which he is serving at a prison where he can watch television and enroll in online university classes. The judge’s apparent concern? Strip searches in the middle of the night with a female officer present.
The United States, with 2.4 million prisoners, almost 3,000 people on death row, and 50,000 inmates serving life without parole, is at the opposite end of the prison policy spectrum. But that is beginning to change.
As America rethinks the get-tough-on-crime policies that led not only to an explosion of the prison population but also to harsh prison practices, it is at “a unique moment in the history of the criminal justice system,” says Craig Haney, a professor of psychology at the University of California, Santa Cruz, who has studied US prison conditions and policies for four decades.
Norway’s handling of the Breivik case is no practical model for the US, experts say. But by pushing the boundaries of how humane prison practices can be, it is raising questions about where the appropriate balance is between punishing convicts for their crimes, and treating them in a way that enables them to contribute to society upon release.
For Norway, the Breivik decision is an extreme example of its rigid adherence to its philosophy of treating prisoners – “even someone who has done something as grotesque as he has – as someone [who is] potentially redeemable,” says Dr. Haney.
This approach, as well as the Wednesday court decision, “no doubt takes Americans aback,” he says.
But the Norwegian philosophy comes from a shared cultural conviction. Bjørn Ihler, a survivor of the 2012 attacks, wrote on Twitter Wednesday:
Moreover, Haney adds, America’s prison policies were not always what they are now.
Prior to the 1970s, most US prisons focused on rehabilitating inmates. During the tough-on-crime era and rampant prison overcrowding, however, the American criminal justice system came to view prison not just as punishment by itself, but also as a platform for further punishment – and at the expense of rehabilitative efforts.
This view became so ubiquitous from the 1970s through the 1990s that scholars gave it a name: the “penal harm movement.”
“Prisons came up with creative ways for people to feel more pain, to suffer more while in prison,” says Haney. These ranged from solitary confinement to curtailing visitation rights to the dismantling of rehabilitation programs.
“Being in prison, in and of itself, is punishment,” adds Haney, whose work has included a focus on the growing use and psychological effects of solitary confinement. “We’ve allowed ourselves to impose even greater, and arguably gratuitous and damaging, additional forms of punishment.”
Some of those policies are now being rolled back, however. Researchers have found evidence of cracks in the penal harm movement, and more could be on their way soon.
In January, President Obama announced a series of executive actions limiting the use of solitary confinement in federal prisons, including banning its use for juveniles. And this comes as criminal justice reform has been gaining broad bipartisan support in Congress and in states.
For Bernadette Rabuy of the Prison Policy Initiative, which advocates for such reforms, the changes in solitary confinement are particularly encouraging.
They “give me hope that the public and lawmakers are becoming more receptive to treating incarcerated people with humanity,” she writes in an e-mail to the Monitor.
Haney agrees. “We’re looking at these issues in a much more sober, serious, and conscientious way,” he says. “Less impeded by and influenced by emotionality and anger and fear.”
It is in this context that the Breivik case potentially holds broader lessons.
While Breivik is kept in his room alone for 22 to 23 hours a day and prohibited from seeing other inmates, his prison is required to try to rehabilitate him. Though courts can extend his sentence if he’s seen to be a continued threat to society, there’s also the possibility he could be released.
American prisons are only just beginning to reconsider rehabilitation. But researchers like Haney are encouraged that the system now seems to be trying to strike a balance between using prisons as tools for punishment and rehabilitation.
“That’s the balance that’s gone awry, and the balance that we need to return to: the pain of imprisonment [combined] with opportunities for people to survive the experience intact, and also to leave prison in a better condition than when they entered.”