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Criminal law and procedure

Norway's sane insanity law

Posted by James Alan Fox, Crime and Punishment November 29, 2011 09:00 PM

It hardly takes a brain surgeon -- or rather a specialist in forensic psychiatry -- to recognize that Norwegian mass murderer Anders Behring Breivik is profoundly mentally ill. His writings, including a 1,500 page manifesto, and his explanations for why he needed to slaughter 77 of his countrymen leave little doubt as to his psychiatric impairment.

The issue of legal insanity is somewhat different, however, from a medical definition of mental illness. Also different are the insanity law and procedures used in Norway as compared to the United States.

According to Norwegian law, a psychotic state of mind at the time of the crime can mitigate criminal responsibility. And, based on a detailed assessment of the accused, including more than a dozen face-to-face interviews with the man, two court-appointed forensic experts have concluded that Breivik was suffering from such paranoid delusions of a psychotic nature that would constitute legal insanity.


Flawed objections to juvenile law reform

Posted by James Alan Fox, Crime and Punishment October 5, 2011 09:30 AM

The response to my last blog post--a call to abolish life without parole sentences for juvenile murderers in Massachusetts--was lively and contentious. While many readers concurred with the goal of better aligning our state with the rest of the nation, some would have Massachusetts remain one of the harshest and most punitive when it comes to sentencing youth.

The negative tenor of certain reader comments was unsurprising, not because introducing parole eligibility for juvenile murderers is in any way a radical idea. Rather the unwillingness of some folks to consider he reforms proposed in S. 672 and H. 1346 (An Act Relative to the Sentencing of Children), is based on an array of misconceptions and falsehoods about juvenile justice.


Abolish juvenile life without parole in Mass.

Posted by James Alan Fox, Crime and Punishment September 21, 2011 09:30 AM

The existing Massachusetts law for trying and punishing juveniles charged with murder, arguably the stiffest in the United States in terms of breadth and rigidity, was enacted amidst a climate of fear fueled by wide-ranging media hype about juvenile violence. Not only was the 1996 statute crafted in the wake of a particularly heinous juvenile murder case locally, but lawmakers around the country responded to warnings about the increasing numbers of the young and the ruthless.

As it happened, the early 1990s spike in juvenile homicide did not persist, but vanished as the new millennium approached. The 1990s drop in juvenile murder has been linked to smarter policing, crack-downs on illegal gun trafficking, increased anti-gang efforts, successful crime prevention programming, demographic trends, and especially shifting drug markets, but not to changes in the way in which juveniles were prosecuted.


Gribble: A quick and correct verdict

Posted by James Alan Fox, Crime and Punishment March 25, 2011 12:45 PM

The wheels of justice may be notoriously slow, but at least the dozen men and women charged with determining the fate of Christopher Gribble acted swiftly. Of course, a lengthy deliberation would have been almost as surprising as any verdict other than guilty of murder in the first degree. At least from the sideline, south of the New Hampshire border, this case seemed as open-and-shut as ever there is.

The defense strategy of portraying the confessed killer as being so devoid of empathy and human emotion that his decision to kill was little more than an involuntary reflex was surely a long shot. But in defense of the defense, it was the only shot. Gribble may certainly be deeply flawed; but his defect is of the character, not of the mind.

The unfortunate part about this failed attempt to portray Gribble’s violent acts as the product of mental disease or defect is the mockery it makes of the insanity defense itself. I absolutely do believe in the validity and the important role of the insanity defense in our legal system, as there are indeed some offenders whose actions are beyond their understanding and control. But public cynicism fueled by long shots like Gribble’s makes it almost impossible for deserving defendants to prevail in insanity cases, especially in high profile trials.

In the final judgment, I am quite satisfied with the resolution of Gribble’s trial. His absurd insanity claim was summarily dismissed by the jury, and he will be incarceration for life without ever having the possibility of parole release. This is exactly how it should be for the most violent, vicious and ruthless of murderers.

Author's note: You can follow me on twitter at @jamesalanfox for notifications of new blog postings. Also, you can find me on the Web at or contact me by e-mail at

A crazy approach to insanity

Posted by James Alan Fox, Crime and Punishment March 15, 2011 12:45 PM

Many eyes are focused on the ongoing trial of 21-year-old Christopher Gribble, charged with viciously murdering Kimberly Cates of Mont Vernon, NH and mercilessly terrorizing her 11-year-old daughter Jaime, to see what kind of punishment the confessed killer will receive. Trial watchers are keenly focused specifically on the outcome of his insanity claim. This is because New Hampshire stands apart as unique in its approach to this issue.

Procedures and definitions pertaining to the insanity defense vary somewhat from state to state. Some jurisdictions, like Massachusetts, require the prosecution to show that a defendant who has raised an insanity claim is in fact legally sane, while about two-thirds of the states have in recent years shifted that heavy burden of proof over to the defense. Most states employ a cognitive assessment of whether the defendant understood what he or she was doing at the time of the offense and could appreciate the difference between right and wrong (the so-called “McNaughtan rule”), and some also consider the question of whether the defendant could control his or her urges (the so-called “Irresistible Impulse test”).

New Hampshire, however, has steadfastly held to a very different standard of insanity prescribed by the so-called “Durham rule,” first formulated in 1871. According to this approach, a defendant is not criminally responsible if his or her conduct was the product of a mental disease or defect. This broader criterion incorporates psychiatric impairments other than those affecting cognition (as in McNaughtan) and volition (as in Irresistible Impulse) -- conditions such as emotional disorders (e.g., depression) or even character disorders (i.e., antisocial personality).


Rat out your kids? -- Some say "yes"

Posted by James Alan Fox, Crime and Punishment July 21, 2010 10:30 AM

When I wrote my column for yesterday's op-ed page of the Boston Globe, I expected the proposal to protect parent-child communications would be a "no brainer." I thought that once folks were aware that parents could be compelled to testify against their kids, they would, like me, be both surprised and outraged. Frankly, I had hoped there would be at least a modest groundswell of support for passing Massachusetts Senate bill S. 2473, which would extend the usual spousal privilege in criminal proceedings to the parent-child relationship.

Based on some online-posted comments, it seems I was wrong about my faith in the sensibility of fellow Massachusettsians. Apparently, with my liberal-leaning lefty outlook, I can be a bit naďve, although some of my critics would use far more colorful language to characterize it. Maybe I should just move to Connecticut or New York, two of the states where the parent-child privilege is recognized. Better yet, I'll stay and continue blogging for justice.

To summarize briefly the points of yesterday's column:

Suppose you received a dreadful call from the police informing you that your son or daughter had just been arrested and charged with robbery or even murder. As a parent, your instinct and first response would likely be to speak with your child about what had happened. You would want to hear his or her explanation of events. However, this could actually turn out to be a disastrous move.

Here in Massachusetts, as in most states, anything your kid says to you about the alleged crime may be used as incriminating evidence in a court of law. You may even be compelled to take the stand as a witness for the Commonwealth against your own flesh and blood.

The good news is that Senate bill S. 2473 would amend the Massachusetts law to insulate communication between minors living at home and their parents (or step-parents) and shield parents from being forced to testify against their offspring. The worrisome news, however, is that the days are dwindling away before the end of the legislative session; if no action is taken on this pending bill, it will end up in the legislative graveyard, at least for this term.


Abolish juvenile life without parole

Posted by James Alan Fox, Crime and Punishment April 30, 2010 01:22 PM

There was little that attorney Jonathan Shapiro could say at the sentencing hearing for his client, John Odgren, except to challenge the wisdom and constitutionality of the mandated penalty of life without parole eligibility. Of course, the chance that the trial judge would depart from the prescribed sanction was virtually zero.

Constitutionality is a matter for the appellate courts to consider--especially the U.S. Supreme Court, which coincidentally will soon rule specifically on the legality of juvenile life without parole (JLWOP) in Sullivan v. Florida and Graham v. Florida. The wisdom of sentencing all first degree murderers--even those as young as 14 regardless of their criminal history or lack thereof--is, however, an issue for the state legislature.

Above all, the justice of juvenile life without parole extends well beyond the Odgren case. It concerns the dozens of prisoners in Massachusetts correctional facilities who were convicted of murders committed during their teens, as well as the fate others yet unnamed defendants who will confront the rigidity of the Massachusetts murder statute


The insanity defense for Odgren - crazy or creative?

Posted by James Alan Fox, Crime and Punishment April 7, 2010 09:12 AM

The trial of John Odgren is beyond-a-reasonable-doubt proof that the Massachusetts murder statute is ill-equipped to deal with special cases--special cases like a 16-year-old alleged murderer who has Asperger's disorder and a history of hyperactivity.

Unfortunately, Massachusetts law governing this case is exceptionally rigid. When the charge is murder, defendants as young as 14 are to be treated no differently that fully-matured adults. A conviction of first-degree murder means an automatic sentence of life without eligibility for parole.

This legislation was passed on Beacon Hill in 1996 in the wake of the exceptionally brutal murder committed by 15-year-old Eddie O'Brien. Previously, juveniles charged with murder faced a prison term of 20 years. Extreme measures legislated amidst a climate of anger tend to be excessively punitive. (For more background, see my Boston Globe op-ed piece from 2007 on Odgren and the murder statute).

There is much about Odgren's background and behavior that may have made people nervous. Notwithstanding his extreme intelligence (not uncommon for those with Asberger's), he was fascinated with violence. He loved to read murder stories and was enamored with knives. These "warning signs," however, only became crystal clear in the aftermath. As is often the case, yellow warning flags only turn red after the blood has spilled.

Given that the state's murder statute leaves absolutely no wiggle room, defense counsel is left with few options. At the outset before expert testimony is heard, raising an insanity defense would seem to be a long shot, but it may be the only shot.


Incompetence is not injustice

Posted by James Alan Fox, Crime and Punishment March 19, 2010 04:24 PM

There are few areas of the law surrounding which there exist more public misunderstanding and displeasure than the issue of mental illness as it pertains to criminal prosecution and responsibility. In Connecticut, the ongoing case against Steven Hayes, a parolee who is charged with a brutal triple homicide during a 2007 home invasion in Cheshire, is stirring up quite a controversy in the court of public opinion.

Unable to communicate with an unresponsive Haynes, defense counsel is seeking to have the defendant declared mentally incompetent, a move that has caused widespread outrage in communities across the state. Dozens of angry Connecticutians have posted comments to the Hartford Courant website—tirades such as “What a joke. Justice in CT? LOL. How about a competency hearing for the judge?”


About the author

James Alan Fox is the Lipman Family Professor of Criminology, Law, and Public Policy at Northeastern University. He has written 18 books, including his newest, "Violence and Security on Campus: From Preschool through College." More »

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