The injustice of under-punishment

Democracy in America shares this story about Norway’s “plush and unusual punishment” of its most violent criminals—including flat screens, private restrooms, and a recording studio.  However, the author chokes back what he suggests is an irrational sense of moral offense at the over-indulgent treatment of criminals in order to offer tacit endorsement of this aspect of Norway’s “morally superior” criminal justice system:

If we are able to approach the matter rationally, which is hard, I think we will see that a society’s main imperative is to guarantee the safety of its members by taking the criminal out of commission and then by punishing wrongdoers to the extent necessary to deter similar future crimes. I think we can be sure that Mr Breivik will not be left in a position to kill again. So the main question, to my mind, is whether a comfortable (and possibly relatively short) detention is sufficient to deter similar crimes. Though I do think the severity of punishment has some effect on the frequency of crimes, I doubt the severity of Mr Breivik’s punishment will have anything at all to do with the future incidence of elaborately plotted massacres.

. . . .

[T]he point of a criminal justice system in a civilised society is not the mental peace of those collaterally wounded by crime.

This conclusion surely is not a settled point that can be asserted so confidently.  Indeed, it is undermined by the very fact of our deep resolution to ensure humane treatment of prisoners:  The way we treat prisoners is a reflection of our values.  Locking people up is about more than merely determent.  While its “main imperative” is indeed the guarantee of safety, that is a far cry from positing that the people’s sense of moral justice and “mental peace” is of no moment.  Indeed, a people’s moral precepts are the foundation of any system of law in the first place.  Under-punishment disserves those moral precepts just as over-punishment does.

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at


  1. I think maybe we’re overselling the degree to which this prison is different than an american prison.

    I mean, looking at the various areas shown in the linked video, they have the exact same sort of spaces that I’d expect prisons in America to have. Except they look pretty, while their american versions look dismal.

    I feel like that’s at least a little bit intentional. Sure, dismal is probably a bit cheaper than pretty, but not much. And I’m strongly of the opinion that having dismal prisons is a bad choice on our part.

    See, I don’t know anyone in prison. But I do regularly interact with people who work at a prison. And I have the strong impression that being in that place makes them worse people. The dismal gets to them, and on some level it corrupts them.

    If that’s the effect on prison employees, I don’t want to see the effect on actual prisoners. But eventually, I will. Those prisoners are eventually going to get released. And I’d like prison to make them better people, not worse.

    • I agree that we don’t want our prison conditions to “corrupt” prisoners, or to unduly hinder our opportunity to rehabilitate them. Contra what appears to be the de facto policy of many American prisons, I’d agree that rehabilitation should be the primary objective of our penal system. To that extent, yes, we want prison to make prisoners “better people, not worse.”

      However, I did not get the impression you did—i.e., that the video of the Norwegian prison was simply an un-dismal version of an American prison. I don’t think most people would get that impression, either. I also disagree with your suggestion that failing to treat prisoners to private flatscreens and what the video called “state of the art” recreational facilities is what accounts for the delta between the American and Norwegian criminal systems. I suspect there are a great number of other social and economic factors that better explain that outcome.

      Again, while I agree that rehabilitation is lacking in American prisons (at least the California prison system, which I have studied a bit), rehabilitation does not require that we make prisons look so positively inviting.

      • I’ll admit to listening to the video with the sound off. My comparison was based on pictures alone.

        That said, that “state of the art” recreational facility looked like my local YMCA. And I think TV technology has progressed enough that having a flatscreen in your room isn’t a particularly impressive luxury.

        • Alan,

          You might not appreciate what a shocking statement this is. Yet, I don’t think you have made your point quite clear. The word “luxury” is defined as “a condition of abundance or great ease and comfort : sumptuous environment ,” “something adding to pleasure or comfort but not absolutely necessary ,” and “an indulgence in something that provides pleasure, satisfaction, or ease.” What you have suggested is that we deprive “luxury” of a fixed meaning and redefine it as something along the lines of “a good or service in some degree of proximity to the cutting edge of technology or opulence, or otherwise not generally available to all people.” But you will see from the Webster’s definition above that there is no such relative component to the word.

          That aside, you are hard to impress! I have a cushy white-collar job and I don’t have a flatscreen in my room. I only got a flatscreen in my house at all just two years ago. If the technology afforded to prisoners is tracking just a matter of months behind that within the budget of a reasonably well paid attorney, I’d say that’s pretty impressive.

          • I do wonder if tube televisions can be gotten in Norway. My tube television (I live in Illinois), which a friend had given me and was about 14 years old, went kaput a few months ago, and the only replacement I could find was a flatscreen TV. It’s about 20″, and cost about $250, whereas the last TV I actually bought (in 1999) was a 9″ tube TV, and cost about $300 (in 1999) dollars. What I’m getting at is, maybe the flatscreen was not only a “luxury,” but perhaps was a cheaper option and more econmical for the Norway authorities.

            Perhaps the issue is whether prisoners ought to have any access to TV (or radio) at all and whether any such access is too plush. I confess that I haven’t made up my mind on that score.

  2. 1. This. It is my understanding that the difference in recidivism rates between Norway and the US is massive – and not in a way that is favorable to the US. So if the primary purpose of prison is making people safer, and less harsh prisons* achieve that primary purpose significantly better than harsher prisons, then there can be no good justification for harsher prisons.

    2. Tim: Has it occurred to you that maybe Norwegians’ “sense of moral justice and ‘mental peace'” does not include a significant need to feel a strong sense of vengeance?

    3. For that matter, has it been definitively shown that tougher punishments actually on average help victims of crimes achieve “mental peace” or a satisfied “sense of moral justice” more than less tough (though still more than just a slap on the wrist) punishments? I always see this fact assumed, never do I see it proven or supported.

    *I refuse to use the word “plush” – unless they’re getting champagne and beluga caviar for dinner every night, I struggle to envision a prison that would qualify as “plush,” and I find the use of “plush” in describing prisons of any sort that actually exists to be more than a little disingenuous).

    • Mark,

      Two things as to (2), above. First, I reject that recasting of the question. I am not certain where the overlap is between “vengeance” and “justice,” but the connotation at least seems stark. From my perspective, “vengeance” connotes a personal injury, whereas “justice” connotes a more general injury, i.e., an injury to the moral order, from which injury we all suffer derivatively.

      At any rate, onto the second point, no, it has not occurred to me that Norwegians do not feel a strong sense of justice. If I’m wrong about that, then I certainly reject Wilkinson’s conclusion that we ought to “shut up and watch . . . . how a civilised society handles such a horrifying crime.”

      Let me put it this way: If a narcotic was developed that proved 100% effective at curing the criminal mind, instantly and without side effects, and that was administered by baking it into a cupcake and offering it to the criminal, would justice be served by tearing down our prisons and replacing them with a cupcake dispensary? It would certainly be the most rational decision with respect to serving our primary directive of preventing recidivism and thus protecting the public. But is there truly no problem with the message that criminals’ just deserts is, literally, a dessert? I think there is a problem with that, and I think most people agree without feeling compelled to the extreme position of sending prisoners to overcrowded and squalid prisons. There’s a middle ground here that American prisons are undershooting and Norwegian prisons are overshooting.

      • I wrote a post on this sometime back. Without saying that Norway is necessarily overshooting (I’d need to know more), I would say that justice is a virtue in its own right. Where that “middle ground” resides, though, is a pretty complicated question. Particularly when justice comes at the expense of social peace.

      • At any rate, onto the second point, no, it has not occurred to me that Norwegians do not feel a strong sense of justice.

        This strikes me as a highly self-serving use of the term “justice” in this context, then. If the pertinent group of people – the pertinent free and open society, and most importantly the direct and collateral victims of a crime – thinks on the whole that a particular level of punishment for a particular crime or group of crimes is “just” and satisfactory, and allows them to achieve a “sense of moral justice and mental peace,” then who are we to say that it is inherently and clearly unjust? Who are we to say that it is under-punishment? Where there is a concern with over-punishment in another society, I can see a connection of sorts under a human rights argument. But under-punishment? Perhaps we can argue that it would be bad policy if implemented here, but can we really say that it is bad policy for the country that implemented it, especially if those concerns apply to all/most crimes equally such that there is no attempt to actively encourage some or all crimes?

        • MT opens the door to lex talionis by bringing in the opinions of the victims as to proper punishment. Certainly on the other hand we have the problem of victims seeking far greater punishment than the law dispenses.

          I was taken aback at how sanguine the Norwegian guy was at the prospect of life in prison. If I’ve read correctly, it’s looking like 21 years, and in a facility that ain’t bad atall. I must question whether this has any deterrent value in the least. [I had wondered if the prospect of capital punishment might have deterred him; this is a slap on the wrist for what he’s done.]

          On the Big Picture front, I have always wondered how mercy might be at odds with justice. We value mercy high or highest, but at the cost of justice?

          • I must question whether this has any deterrent value in the least.

            This is an empirically measurable question. Compare and contrast: Norway incarceration rate: 66/100,000; USA incarceration rate: 738/100,000. Norway recidivism rate: 47% rearrest rate within five years; USA recidivism rate: 67% rearrest rate within 3 years, with more than 50% actually doing something that sends them back to prison within that 3 year period (presumably a good chunk of the remaining 15-17 percent also wind up going back to prison based on offenses for which they had been arrested but not yet convicted at the expiration of the 3 year period).



            This is a huge difference, large enough to at least rule out the idea that Norway’s less harsh prisons and sentences are less of a deterrent than the US prison and sentencing system (though probably not quite large enough to conclusively say that Norway’s system is more of a deterrent than the US’).

          • MT: Only if Norway is comparable to the US. There are ethnic homogeneity questions that get buried in these things, as you know. Charlton Heston got slimed for even referring to them elliptically in Bowling for Colombine, as you may also know. 😉

            Which is why it all gets lumped together in an undifferentiated soup and the US is one big “cowboy” country.

            Also the nature of the crimes, property or violence, killing family and friends vs. killing strangers, etc. You could even go to family-support structures: what are the recidivism figures for US criminals raised by 2 parents? There is very little data out there corrected for such nuances, and many “root causes” perhaps still completely unaddressed because they don’t fit the narrative of “cowboy” America.

            As you know, Mark, I’m thoroughly critical of our social science establishment and frankly don’t trust them to overcome their biases.

            You are of course aware of the NASA data/global warming thing, yes?


            Maybe not. Google doesn’t show it being carried by the mainstream press.

            And I heard an interview with NASA’s Dr. Roy Spencer, who said they’ve been putting out the data for a few years, but the mainstream global warming establishment won’t even read their papers.

            Yes, I’ve gone off on a tangent, but this business of letting the social science establishment run our society is not something I’m signing onto.

          • Meh. When I said above that the difference isn’t so great that you can say that Norway’s system is more of a deterrent than the USA’s system, the ethnic homogeneity thing was what I had in mind. But the statistical difference here is still massive, and the data sources are reasonably reliable in each instance, with the sample size in Norway at 100% and the sample size in the US at around 67% (and 100% from the 15 states included). Additionally, the metrics in both are the same.

            It’s not enough to say “this result defies what I assume to be true, and therefore cannot be believed.” One must find a basis to call the result into question.

            Fact is that I can think of any number of logical reasons why the Norwegian system would be a more successful deterrent, especially on the recidivism front, none of which I view as being counterintuitive.

          • MT, don’t “meh” me. I’m open to the possibility, don’t get me wrong. But Norway in particular seems a bad fit for comparison for reasons given.

            Further, would Norway’s recidivism rate rise if its prisons were as shitty as ours? What is the recidivism rate for comparable “country club” US prisons? In North Dakota? These are the apples-to-apples data I believe are probably not attempted by the SS academy for its own ideological reasons.

            But pls do disabuse me.

          • I’m more sympathetic to Mark’s perspective here, in that I don’t think that our current arrangement is providing more deterrence than even a country club prison and is instead simply hardening them. That being said, I do think Tom’s point is valid. I’m suspicious comparing numbers to such markedly different countries.

          • And I’m way open to US prison reform: it’s hardly intuitive to expect to release productive citizens if we treat them like animals.

            Deterrence, and we’re questioning if it even exists beyond the simple threat of simple incarceration—regardless whether it’s pleasant or not—is no panacea. Nor would I submit making incarceration twice as shitty than shit would be productive; indeed it could and probably coarsens.

            But there is the incorrigibility question: why would someone risk their “third strike?” Surely deterrence has no effect here, even with the threat of return to an admittedly shitty prison.

            I also wonder what differences the friends/family reaction to someone released for, say, manslaughter might be between the two countries. Do they throw them a party in Norway? They do here.

            This has spurred in my mind all sorts of possible “root causes” that I seldom hear spoken of in these wonky discussions, like the children of 2 parents and not one, etc., per above. I don’t know if American society or the attitudes of its incorrigibles [?] even has a European analog.

            Although Theodore Dalrymple’s dispatches from the UK penal system has despairingly familiar echoes.


            I suppose what I’m getting at is that I suspect our problem is philosophical and not one of technique, technocracy, of wonkage. That is the modern conceit.

          • If he was rationally considering consequences, he must have realized that getting killed in the act was a definite possibility. Given that, I don’t see capital punishment as a likely deterrent in his case.

        • If the pertinent group of people – the pertinent free and open society, and most importantly the direct and collateral victims of a crime – thinks on the whole that a particular level of punishment for a particular crime or group of crimes is “just” and satisfactory, and allows them to achieve a “sense of moral justice and mental peace,” then who are we to say that it is inherently and clearly unjust? Who are we to say that it is under-punishment?

          Two responses to this.  First, my impression (granted, this is speculation) is that the Norwegian policy of “nice” treatment of its prisoners is not a result of any exercise of the Norwegian people’s judgment concerning what sort of punishment comports with “moral justice and mental peace.”  As I outlined in the OP, I think they, like Wilkinson, have bought the idea that “the point of a criminal justice system in a civilised society is not the mental peace of those collaterally wounded by crime.”  In short, I am not challenging the Norwegians’ judgment about what sort of punishment is just; I am challenging their abdication to make any such judgment.

          Second, even if Norwegians did not abdicate this civic duty, I am not challenging their judgment in a political context—I am not challenging their sovereignty or purporting to demand they change their policy.  Nor am I concerned with the recidivism or deterrence question, as those are circumstantial and thus not moral questions. I am only expressing the moral view that Norwegians have it wrong as to what basic measure of deserts are owed to those men and women who violently offend mankind’s most basic moral laws.

          • As I outlined in the OP, I think they, like Wilkinson, have bought the idea that “the point of a criminal justice system in a civilised society is not the mental peace of those collaterally wounded by crime.”

            I realize that you confess to speculating, but maybe (and here I’m speculating) it’s an issue of the Norwegians finding a different way to assuage the “mental peace of those collaterally wounded by crime.” What I mean is, I don’t know enough (fortunately) about being a victim of a crime or about being a collateral victim, but do we know from the outset the best way for such a victim to attain “mental peace”?

            Does the crime victim or relative of the victim get mental peace from the execution of the murderer or from the knowledge that prison is a horrible existence? Maybe, I really don’t know.

          • Pierre,

            For my part, I’m presuppositionally committed to the premise that putting criminals in accommodations that appear to be better than my Orange County college housing facilities cannot possibly satisfy a proper conception of justice. That is, I’m prepared to contend that if the community gets “mental peace” from the Norwegian prison reported above, that community has a misconceived sense of justice. Whether the death penalty, for example, is a necessary or appropriate part of a properly conceived sense of justice seems to me closer to the margin.

          • Mr. Kowal,

            I would say, though, that there is a distinction between your “Orange county college housing facilities” and the prison, no matter how “plush.” And that is, the occupant of the college housing can leave at his or her own pleasure, whereas the prisoner, apparently, cannot do so. Whether that aspect of the punishment–loss of liberty-fills the gap of what the collateral victims have suffered, I really do not know. But it is a distinction.

  3. I’ll make a guess here, and claim that spree killings occur at a higher rate in the USA than in Norway. Which might suggest that deterrence doesn’t function well (to be sure, one would have to do a rigorous study).

    I notice that the first thing some people do when a European system produces better results is to claim ‘it wouldn’t work here’, or ‘it ain’t right’, or words to that effect. What we should do is ask ‘are we doing it right?’.

    • I’m not sure about deterrence either. It’s a question. However, 21 years in a fairly cushy facility certainly has not much deterrence value atall, which Tim raised infra.

      Walter Russell Mead raised an interesting point, that societal upheaval—that is, stuff that disrupts a placid norm—could be the thing that sets such folks off. That’s the “trigger” of the Norway thing. From this, I take that in the polyglot US, we are always in some level of upheaval, hence we’re innately more prone to such things.

      The Norwegian horror says less about any shortcomings in Norwegian life and culture than about modern life generally. It reminds us of the profoundly unsettling truth that modernization may lead to more violence and more death than ever before.
      Modernization is not just more golden arches and more bloggers. It is also about accelerating social change. Capitalism drives technological change and technological change feeds on itself the more of it we have, the more we get. …

      But here’s a catch: that technological change also drives social change. Factories move to China. Immigrants move to Norway bringing strange ideas. The social welfare states of western Europe creak under the strain.

      This accelerating, unpredictable and destabilizing change can cause individuals and social groups to become unhinged: to lose their way in the confusion and mystery of modern life. Blue collar factory workers lose their jobs by the millions; some adapt, some endure, a few go postal. The upper middle class feels the earth shake beneath its feet as old certainties are challenged and old ways of making a living cease to work. Most go about their business; some, like Ted Kaczynski, flip out to the Dark Side.
      When a whole society is stressed by more change than it knows what to do with, the Dark Side gets crowded. People flip out in sects and groups rather than one by one. We see that in many Muslim countries today where the appeal of terrorists is strengthened by a pervasive sense of social frustration. Sometimes whole countries and whole nationalities flip. We saw it in the Bolshevik madness in Russia, the Fascist epidemic that swept Europe in the 1920s and 1930s; we saw it in Iran in 1979. The Serbs and the Hutus went over the edge in the 1990s.

      I dunno. But I bet Norway of 1990 was a lot more like Norway of 1790 than the case in the US.

      As for Tim’s topic, I’m still stuck on justice vs. mercy, and whether the latter, if institutionalized as in Norwegian penal law, subverts the former. And if Mead is right, this question may be asked more in the coming days if Europe does much more wigging out.

  4. From the video (if you listen closely, and I am paraphrasing):

    Breivik is in solitary confinement in a different facility right now, but that five-star prison we just showed you could become his long term home…[italics mine and not necessarily implied in the tone adopted by the incredulous reporter]

    Do we know for a fact that Breivik will get this “five-star” treatment? Is there any exception built into Norwegian law for exceptions? I don’t know.

    I would like to introduce one item that I haven’t seen in the comments so far, and that is: sure, it’s seems unjust to give Breivik this type of treatment after what he has done. But if we (by which I mean, “the Norwegians”) readjust the punishment, where do we (by which I mean they) draw the line? In other words, would this issue be as evocative if it involved an everyday murderer and not the (from what I understand) relatively rare mass murderer?

    • When the U.S. urbanism movement got started in the ’50s and ’60s, we built public housing that we now compare to prisons. The now-demolished Robert Taylor Homes in Chicago, a 16-story line of apartment blocks along the Dan Ryan Expressway, then touted by urban planners as a triumph of urban planning, featured ingress and egress through long metal cages, hallways unlit and soaked in urine, frequently broken elevators, and boarded up units that attracted violent criminal drug and gang activity.

      Obviously, we should all hope our public housing is improved since then, and largely it is. But it would even be a stretch to give the law-abiding poor the generous comforts Norway affords its hardened criminals.

      • I’m not sure I see the relevance of this example. If we’re talking about public housing and other accommodations for the poor, I think we should compare how Norway provides for its poor and how that compares with Norway’s prison system.

        At any rate, it seems your argument (in your original post and other comments, not in this particular comment I am responding to) was that the treatment afforded by this “five-star” facility (at which Breivik is not, or at least not yet, being held) was unjustly plush and that this plushness was/is an affront to the collateral victims of his crimes, and not whether the poor in America are as well-treated.

        I’m not sure I agree with your argument–if I am not misrepresenting it–but my comment was a response directed at that argument and not at the type of example you offer concerning public housing in the U.S.

        • I began that comment in response to yours, but then realized I didn’t quite understand the point of your comment. At any rate, there is something interesting about that juxtaposition of what public accommodations society feels compelled to provide.

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