INTRODUCTION I. CRIMINAL MADNESS AND CULTURAL ICONOGRAPHY II. THE AGE OF EUGENICS: CRIMINAL DEGENERATES, SEX FIENDS, AND IRRESISTIBLE IMPULSES III. THE AGE OF HITCHCOCK: THE RISE AND DEMISE OF THE FREUDIAN PSYCHOPATH IV. THE NEW MONSTERS: THE RISE (AND RISE AGAIN) OF THE IMPLACABLE PSYCHOPATHIC KILLER CONCLUSION INTRODUCTION
From Euripides to Shakespeare to Hitchcock, criminal madness has played a central role in the most popular and influential media of the day. (1) This is, perhaps, not surprising. Not only is criminal madness an intrinsically powerful melodramatic plot device, it touches upon fundamental social and psychological issues central to cultural conceptions of justice, proper social organization, and the self. Criminal madness also has posed a hard problem for law, evidenced by the timeless controversy over the boundaries of criminal responsibility, the basic meaning of the insanity defense, and the broader problem of what to do with people whose mental, intellectual, or psychological attributes diminish their ability to abide by the law.
There is a vast literature tracing, debating, and analyzing the legal tests brought to bear by judges and juries to determine if a criminal defendant is legally insane and hence not responsible for his or her criminal conduct. Far less has been written, however, about the cultural iconography of criminal madness--that is, the array of images, narratives, and symbols that popular culture deploys to enable it to tell stories about the kinds of disturbances to the social order that result from "madness" (however that concept is defined). (2) That omission deserves redress. One of the assumptions of this Article--and one shared by those working in the growing field of law and culture studies--is that the development and transformation of cultural iconography does not play out in a vacuum any more than the development and transformation of "law." Obviously, neither popular culture nor law would make any sense understood as a purely autonomous phenomenon. What is perhaps less obvious is the possibility that important insights about the law--specifically, the law of criminal madness--can be gleaned from the evolution of its cultural iconography. (3) What follows is an effort to trace the iconography of criminal madness by reference to popular cinema and an attempt to link it with the law's development over the same span. Part I provides some prefatory observations about the relation of film and culture to law. Part II explores the depiction of criminal madness in the 1930s, primarily through the monster movies of the era. Part III describes the growing embrace of psychological and psychiatric theories in midcentury cinema, which occurred precisely during a period in which the insanity defense was liberalized and constitutional checks on the state's power to institutionalize mad criminals were recognized. Finally, Part IV examines dramatic post-1970s changes in cinematic portrayals of criminals, the criminal justice system, and mad criminals, and explores ways in which the new iconography of criminal madness contributed to a dramatic shrinkage of the rights of mentally ill offenders.
CRIMINAL MADNESS AND CULTURAL ICONOGRAPHY
There are ample reasons to believe both that changes in law reflect changes in popular values, as well as beliefs, interests, ideas, stereotypes, attitudes, preconceptions, and fears, and that those changes, in turn, are reflected in, and shaped by what I refer to as "cultural iconography." Before proceeding, let me first clarify what I mean by that phrase. If iconography is understood as "pictorial material relating to or illustrating a subject," or "the traditional or conventional images or symbols associated with a subject," (4) then "cultural iconography" might be understood as the visual or symbolic representation of particular subjects through the main or popular cultural media. (5) Taking an iconographic approach to the study of law and film means paying special attention to the physical aspects of actors and characters and to imagery depicting the milieu in which a narrative is situated. (6) It assumes that a careful analysis of the pictorial or symbolic imagery associated with particular phenomena in popular cinema provides insight into the treatment of those same subjects when they become the subject of law.
Scholars working in the area of law and film, or law and culture more broadly, need not assume that law is in any direct sense the product of cinematic or cultural imagery. Certainly, few law and culture scholars would suggest that any neat causal arrows can be drawn, and I am not making such a claim here. (7) Indeed, it may be that cultural iconography more often is a product rather than a producer of law. Perhaps the strongest and most accurate description of the causal relationship between culture and law is captured in the notion of the "feedback loop." (8) Cultural iconography is influenced by law, and law is influenced by cultural iconography in a kind of endless process of production and reproduction. Although the idea of feedback loops suggests causal bidirectionality, we can hypothesize a number of quite plausible accounts in which culture does have a unidirectional causative impact on the shape of law in general, and of insanity law in particular.
For starters, popular culture is a source of information and competes with other informational sources--schools, churches, social groups, the "street," parents, and, of course, viewers' personal experiences--in influencing popular beliefs or conceptions. However, popular culture has an advantage over other informational sources in its universality and pervasiveness. All other informational sources are parochial and anecdotal. Popular culture, in contrast, is international in scope and, if not wholly systematic in its presentation, purports to present a coherent worldview. (9) Because it implicitly purports to show the world "as it is"--indeed, the narrative conventions of dramatic fiction require a plausible construction of plot, character, and motive to enable the viewer to at least momentarily suspend her disbelief (10)--it likely has the greatest impact on the public's understanding of unfamiliar topics, ones which most people don't frequently encounter in their daily lives and about which they lack alternative information sources. Some topics, such as the criminal justice system, are pervasively the subject of popular media and constitute the primary source of information for the vast majority of people. (11) Most people have little exposure to criminals and even less to do with persons who are "mad" or "insane." It would not be surprising, therefore, if media images of criminal madness--a popular and recurrent subject of film and television--have a particularly powerful impact on the public's understanding of those subjects. (12)
The "public" or "popular" view of criminal madness is manifested in law in a variety of ways. First, popular views matter because law, or more precisely, laws are the product of a majoritarian political process. Informed or not, legislators draft and enact laws in response to expectations about how those laws will be perceived by voters. If voters' preferences and concerns are shaped by popular culture generally, and more specifically, by the media, then so will be the penal code. (13) How the media depicts subjects of law ultimately shapes both the content of law and its reach; it draws--or at least impacts the drawing of--the most critical legal distinctions, including who is "normal," what conduct is punishable, and where and for how long criminally irresponsible individuals are quarantined.
Equally important, application of those distinctions in particular cases requires individual jurors to infuse sterile legal rules with concrete meaning, and those jurors will be drawn from and be representative of that same public. Concerns that jurors are unduly influenced by culture, and especially by the popular media, are as old as popular culture itself, and the recent highly publicized concern with the so-called "CSI effect" is only the latest iteration of the theme. (14) In being asked to figure out "what happened" in any given case, jurors necessarily use "cultural knowledge," which itself is partially constructed by the media, "to orient and guide their narratives about what happened." (15) These concerns have been given special emphasis in the context of legal standards governing the treatment of mentally ill criminals. Countless scholars have observed that jurors' preconceptions about mental illness, criminality, and their interplay are almost entirely a product of popular media imagery. (16) To the extent that those preconceptions are erroneous, and most agree that they often are, informed or reasonable handling of mental illness, the insanity defense, and the criminally insane becomes substantially more difficult. (17) Even if legal rules are judiciously crafted, distorted popular preconceptions can significantly limit the effective implementation of formal legal rules. (18)
In at least some areas of law, cultural preconceptions not only influence the application of legal standards, they may supplant them altogether. This phenomenon has been documented by researchers who, after studying the impact of different insanity tests on jury decision making, have consistently concluded that the actual legal formulations do not make much of a difference. (19) Jurors tend to decide cases consistently regardless of the specific legal standards that supposedly govern their decision making. If "official" legal formulations do not actually matter, jurors must draw upon some other set of rules. It may well be that legal rules in at least some contexts are functionally drafted and enacted not through the formal political or judicial process but rather through some sort of informal cultural consensus-building mechanism. If so, insanity law may in a...