{"id":25066,"date":"2015-10-26T14:37:12","date_gmt":"2015-10-26T19:37:12","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=25066"},"modified":"2015-10-27T20:28:58","modified_gmt":"2015-10-28T01:28:58","slug":"jekyll-hyde-and-criminal-law","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2015\/10\/jekyll-hyde-and-criminal-law\/","title":{"rendered":"Jekyll, Hyde, and Criminal Law"},"content":{"rendered":"

I am looking forward to Professor Nicola Lacey\u2019s public lecture at Marquette Law School tomorrow. Lacey\u2019s presentation, the annual George and Margaret Barrock Lecture on Criminal Law, is entitled, \u201cSocializing the Subject of Criminal Law? Criminal Responsibility and the Purposes of Criminalization.\u201d \u00a0More information and registration are available here<\/a>.<\/p>\n

For an engaging and succinct introduction to Lacey\u2019s important writing on criminal responsibility, I would recommend \u201cPsychologizing Jekyll, Demonizing Hyde: The Strange Case of Criminal Responsibility,”\u00a04 Crim. L. & Philosophy 109<\/a>\u00a0(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.<\/p>\n

First published in 1886, Stevenson\u2019s 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.\u00a0\u00a0 The animalistic Hyde may gratify his lusts without any risk to Jekyll\u2019s 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.<\/p>\n

<\/p>\n

Lacey views the story from the standpoint of criminal responsibility. How, she queries, are we to think about responsibility for Hyde\u2019s crimes?<\/p>\n

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\u2019s character. \u201c[T]his was a holistic judgment of wrongful conduct and dangerousness rather than today\u2019s supposed analytical separation of (external) conduct from (internal) \u2018mens rea.<\/em>\u2019 . . . [T]he key variable in most criminal trials was the defendant\u2019s 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 . . . .\u201d (117)<\/p>\n

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\u2019s state of mind. In the new system, which largely persists to the present day, \u201cthe fairness of criminalization is premised on the idea that an offender\u2019s capacities of understanding and self-control were properly engaged at the time of the alleged [offense].\u201d In short, to use Lacey\u2019s shorthand, criminal responsibility, once based squarely on character<\/em>, came to be seen primarily as a function of capacity<\/em>.<\/p>\n

Appearing at the end of the nineteenth century, Jekyll and Hyde<\/em> should be considered against the backdrop of this transformation, which was already well advanced. Stevenson\u2019s novella problematized the increasingly dominant capacity-based thinking about responsibility. The story vividly illustrates a sort of \u201cunconscious\u201d crime; from Jekyll\u2019s standpoint, Hyde\u2019s 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\u2014at once tantalizing and horrifying\u2014that individuals may act on primal urges without moral or criminal responsibility. Although Jekyll and Hyde <\/em>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\u2019s chemical concoction).<\/p>\n

As Lacey sees it, Stevenson\u2019s story thus \u201crepresents a nostalgia for an earlier \u2013 perhaps mythic \u2013 world of confident moral evaluations.\u201d (127) Hyde, who is physically grotesque, is more easily judged within the traditional system of character evaluation, which laid more emphasis on external appearances. \u201cJekyll and Hyde<\/em>, 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 \u2018psychologisation\u2019 of criminal responsibility.\u201d (128)<\/p>\n

Lacey\u2019s 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

I am looking forward to Professor Nicola Lacey\u2019s public lecture at Marquette Law School tomorrow. Lacey\u2019s presentation, the annual George and Margaret Barrock Lecture on Criminal Law, is entitled, \u201cSocializing the Subject of Criminal Law? Criminal Responsibility and the Purposes of Criminalization.\u201d \u00a0More information and registration are available here. For an engaging and succinct introduction […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,48,37,122],"tags":[],"class_list":["post-25066","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-marquette-law-school","category-popular-culture-and-law","category-public","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/25066","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=25066"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/25066\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=25066"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=25066"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=25066"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}