The Prisoner as One of Us: Norwegian Wisdom for American Penal Practice

• Publication year: 2017

The Prisoner as One of Us: Norwegian Wisdom for American Penal Practice

Emily Labutta

THE PRISONER AS ONE OF US: NORWEGIAN WISDOM FOR AMERICAN PENAL PRACTICE

ABSTRACT

The United States suffers from among the highest crime and recidivism rates in the world. This is in part due to its focus on retribution as the purpose of punishment and its high sentencing structure. Norway, on the other hand, has some of the lowest crime and recidivism rates and boasts Halden prison, which has been hailed as the world's most humane prison. In Halden and other prisons, the Norwegian penal system applies the principle of normality. Under the principle of normality, Norway seeks the reintegration of its offenders into society. Its prisoners suffer fewer of the negative, unintended side effects of prison that isolate the prisoner from society, reinforce bad habits, and make reintegration upon release nearly impossible. This Comment proposes that the United States could reduce its high crime and recidivism rates with a penological approach that bridges that of the two countries—a rehabilitative retributivism. The United States can keep its focus on retribution while at the same time making sure that its punishment does not swell to include those negative side effects. By reducing its sentencing structures and incorporating the principle of normality into its retributive goal, the United States could better ensure that prisoners return to society as productive members, and it could experience lower crime and recidivism rates as a result.

Introduction

On Friday, July 22, 2011, at 3:26 in the afternoon, a car bomb was detonated in Oslo, Norway, killing eight people and damaging a number of government buildings.¹ Less than two hours later, a gun rampage erupted only a short distance away on Utoya,² a Norwegian island to the northwest. In order to gain access to the island and to his victims, the gunman told the ferryman he was

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traveling to the island to do research about the bomb blasts.³ He disguised himself in police uniform and shouted offers of help to victims to trick them into coming out of hiding.⁴ The gunman shot and killed sixty-nine people, the majority of which were teenagers attending a youth camp for the Norwegian Labour Party.⁵ When the police arrived a little over an hour after the slaughter began, the gunman surrendered willingly and without struggle.⁶

The above chronicles the short but gruesome affair that has been called "one of the worst terrorist attacks in Europe since the Second World War."⁷ The gunman, Anders Behring Breivik, was found guilty at trial and sentenced to twenty-one years, the highest penalty available in Norwegian courts.⁸ There was little outrage over the result of the trial and no cries for vengeance.⁹ The public, including the parents of the teenagers killed, actually spoke out against any theoretical application of the death penalty.¹⁰

This crime would have undoubtedly been treated very differently had Breivik committed these atrocities in the United States and been subject to the criminal jurisdiction of the U.S. penal system. Before trial, there would have been public outrage at the crimes. At sentencing, it is unlikely that a sentence as low as twenty-one years would have even been considered.¹¹ Breivik would likely face multiple life sentences, if not the death penalty.¹² After trial, Breivik would be subject to a penal system that would lock him up and throw away the key, and be glad to have done so.¹³

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The differences between the penal practices of the United States and Norway are glaring, especially when comparing the incarceration and recidivism rates. As of October 2013, the United States had the highest prison population rate in the world, housing 716 people for every 100,000 people in the national population.¹⁴ At the same time, Norway housed only seventy-two people in prison for every 100,000 people in the national population, a rate almost one tenth of the United States.¹⁵

What can explain this stark contrast between the two countries? Some might argue it is expected that Norway would have low prison population rates, especially when compared to the Unites States. Norway is a small, largely homogenous¹⁶ country with deeply embedded social welfare systems.¹⁷ The United States' high prison population rates could simply be the product of national characteristics—its people, geography, economy, and politics—and Norway, a country with radically different characteristics, might have nothing to offer the United States in terms of rethinking penal policy.

Such an argument is too dismissive when considering penal policy in the United States, an area in crucial need of reform. Help from any corner, if applicable, is valuable. Furthermore, while the circumstances surrounding the problems of incarceration and recidivism are different, the problems themselves are the same. The United States and Norway have attempted to solve these problems in different ways, and Norway's methods have borne better results. Admittedly, some circumstantial features of Norway's system are either unlikely or impossible for the United States to adopt. This Comment argues that the United States could stand to change its approach to incarceration and recidivism by learning from the positive aspects of Norway's system and its successes. The United States needs a better response to the problems of incarceration and recidivism. It is time that the United States look to Norway and evaluate whether any of Norway's effective treatments should be exported to the United States.

This Comment does not address the prevention of crime or the entry of people into the criminal justice system. Nor is this Comment about the treatment of people within the criminal justice system at any point prior to sentencing. Rather, this Comment considers the treatment of people who have been adjudged guilty and sentenced to a period of incarceration, and whether they are

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effectively reintegrated into society once they are released. While a solution to the problem of crime in the United States must invariably take into consideration pre-conviction issues, those issues are outside of the scope of this Comment.

This Comment will compare the incarceration and recidivism rates of the United States and Norway and analyze the explanations and causes behind these rates. Simply replacing the U.S. system with the Norwegian system is not a solution to the problem of the United States' high incarceration and recidivism rates. Not only would such a replacement not be possible because of inherent differences in the structure, policy, and operations of each country, but it would fail to honor the purposes of punishment as they have come to be understood within the United States. Rather, this Comment argues that the solution is a penological system that bridges each country's approach—a rehabilitative retributivism—that will lead to lower incarceration and recidivism rates than either country's model applied on its own. Specifically, if the United States adopted Norwegian-style lower, indeterminate sentencing and applied the Norwegian principle of normality within prisons, then the consequent changes in the penal system would lower incarceration and recidivism rates.

In Part I, this Comment will provide the background of the different incarceration rates, penal history, and recidivism rates of each country. In Part II, this Comment will compare the different penal approaches of each country to explore the cause of their differing incarceration and recidivism rates. This Comment will also examine Norway's newest prison, Halden, and the terrorist attack of Norwegian national Anders Breivik as examples of Norway's radical penal approach. In Part III, this Comment will argue for a blended penological approach that takes advantage of the Norwegian method of lower sentencing structures and rehabilitative treatment without sacrificing U.S. retributivism.

I. The Numbers—A Comparison of Prison Rates, Penal History, and Recidivism Rates

Looking at numbers alone can be misleading as only two factors determine a nation's prison population rate: the number of sentences and the length of those sentences.¹⁸ A massive incarceration rate may be the product of long sentences, frequent incarceration, or both.

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With 2.24 million prisoners, the United States houses more prisoners than any other country;¹⁹ however, the United States comprises less than five percent of the world's total population.²⁰ The number of sentences undoubtedly influences this rate. As of 1999, the United States was sentencing individuals to prison at a rate six to ten times higher than that of most comparable nations.²¹ Additionally, sentence length significantly contributes to this rate. Although some countries sentence more prisoners than the United States, the United States has a higher incarceration rate because it doles out longer sentences.²² Due to mandatory minimums and truth-in-sentencing laws,²³ sentence length has increased to the point where U.S. prisoners are serving an average of twenty-seven months in prison, a five-month increase from 1990.²⁴ Moreover, about twenty percent of state prisoners and thirty-three percent of federal prisoners will have served more than five years.²⁵ As a result of these factors, by October 2013, the United States had the highest prison population rate in the world, housing 716 prisoners for every 100,000 people in the national population.²⁶ At the same time, Norway housed only seventy-two prisoners for every 100,000 people in the national population.²⁷

U.S. incarceration rates have not always been so high. There was a dramatic increase in incarceration in the 1970s.²⁸ In some ways, this can be attributed to a spike in violent crime. The number of murders more than doubled from 1960 to 1974, rising from 9,110 to 20,710.²⁹ Furthermore, 1973 marked the enactment

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of laws codifying mandatory prison terms and...