Jekyll, Hyde, and Criminal Law

Posted on Categories Criminal Law & Process, Marquette Law School, Popular Culture & Law, Public

I am looking forward to Professor Nicola Lacey’s public lecture at Marquette Law School tomorrow. Lacey’s presentation, the annual George and Margaret Barrock Lecture on Criminal Law, is entitled, “Socializing the Subject of Criminal Law? Criminal Responsibility and the Purposes of Criminalization.”  More information and registration are available here.

For an engaging and succinct introduction to Lacey’s important writing on criminal responsibility, I would recommend “Psychologizing Jekyll, Demonizing Hyde: The Strange Case of Criminal Responsibility,” 4 Crim. L. & Philosophy 109 (2010). In this article, Lacey uses the classic Robert Louis Stevenson story of Dr. Jekyll and Mr. Hyde to illustrate some fundamental tensions in thinking about criminal responsibility.

First published in 1886, Stevenson’s novella concerns a distinguished Victorian doctor, Jekyll, who despairs over his urges to indulge in vice. Jekyll devises a potion that splits the good and evil sides of his personality into distinct identities.   The animalistic Hyde may gratify his lusts without any risk to Jekyll’s reputation, or so it seems. The plan unravels, however, as Jekyll loses the ability to control the transformations, and the Hyde identity becomes dominant. Along the way, Hyde commits a murder and eventually kills himself (and thus Jekyll, too) in order to avoid arrest.

Lacey views the story from the standpoint of criminal responsibility. How, she queries, are we to think about responsibility for Hyde’s crimes?

Lacey invites us to think about this question in historical context. In other work, she has identified a transformation in thinking about criminal responsibility that occurred largely in the nineteenth century. Prior to the nineteenth century, Lacey argues, criminal responsibility was attributed chiefly on the basis of character. Eighteenth-century jurors, in other words, determined guilt or innocence in light of their judgments about the defendant’s character. “[T]his was a holistic judgment of wrongful conduct and dangerousness rather than today’s supposed analytical separation of (external) conduct from (internal) ‘mens rea.’ . . . [T]he key variable in most criminal trials was the defendant’s capacity to gather together credible people willing to speak for her and back up her testimony. . . . [A]ttributions of responsibility were based on judgments about the quality of character displayed in conduct . . . .” (117)

Across the nineteenth century, this holistic judgment was displaced to a considerable extent by new thinking about responsibility that was rooted in a more narrowly focused assessment of the defendant’s state of mind. In the new system, which largely persists to the present day, “the fairness of criminalization is premised on the idea that an offender’s capacities of understanding and self-control were properly engaged at the time of the alleged [offense].” In short, to use Lacey’s shorthand, criminal responsibility, once based squarely on character, came to be seen primarily as a function of capacity.

Appearing at the end of the nineteenth century, Jekyll and Hyde should be considered against the backdrop of this transformation, which was already well advanced. Stevenson’s novella problematized the increasingly dominant capacity-based thinking about responsibility. The story vividly illustrates a sort of “unconscious” crime; from Jekyll’s standpoint, Hyde’s acts lie beyond his capacity to control. The story thus reflects a broader Victorian fascination with hypnosis, sleepwalking, multiple personality disorder, and hysteria, all phenomena that seem to dissolve the capacity for self-control and thus hold out the possibility—at once tantalizing and horrifying—that individuals may act on primal urges without moral or criminal responsibility. Although Jekyll and Hyde gives us an extreme example of loss of capacity, the story implicitly raises troubling questions about how much control individuals have (or want to have) over their actions, about the ability of the criminal-justice system to make reliable capacity judgments, and about the risks to capacity and self-control that are posed by the accelerating advances of science (represented by Jekyll’s chemical concoction).

As Lacey sees it, Stevenson’s story thus “represents a nostalgia for an earlier – perhaps mythic – world of confident moral evaluations.” (127) Hyde, who is physically grotesque, is more easily judged within the traditional system of character evaluation, which laid more emphasis on external appearances. “Jekyll and Hyde, then, stands as a powerful symbol of the continuing appeal of a strongly evaluative and partially character-driven practice of responsibility-attribution even at the supposed climax of the era of ‘psychologisation’ of criminal responsibility.” (128)

Lacey’s article concludes with the provocative suggestion that the character-based approach, never entirely eliminated from the criminal-justice system, is staging a comeback, as exemplified by three-strikes laws, sex offender registries, and expansively defined new terrorism crimes. She speculates that character may become an increasing focus whenever anxieties about social control are especially elevated, as was the case in the late Victorian period and, arguably, also today.

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