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Volume 48, Number 6 (August 2001) reprinted by permission of the author and Law Review ILLEGAL FICTIONS: MYSTERY NOVELS AND THE POPULAR IMAGE OF CRIME Lawrence M. Friedman* & Issachar Rosen-Zvi**
Christie? To be sure, there are some people who seem immune to the charms of the detective story, but they are probably in the minority. In any event, the "whodunit" is a cultural phenomenon of some importance. And because detective stories naturally deal with crimes and criminals (mostly murder of all sorts), this form of popular literature must tell us something about cultural understandings of crime, and about attitudes toward crime, criminal justice, and the law. Of course, the standard "mystery" is a highly conventional form of literature. It has to be read with care - between the lines, so to speak. This Essay explores some of the interrelationships between the detective story, as a form of popular culture, and notions of crime and of the criminal prevailing in society at different points in time. The detective story, as a literary form, has evolved and changed a good deal over the last century and a half. The basic theme of this Article is that these changes reflect changes in the cultural perceptions of crime and of criminal justice. This is hardly a startling conclusion; the more interesting issue is what changes in literary form and content have taken place, and why. A subsidiary aim of this Essay is to explore how changes in the law track these changes in literary form, content, and perception. Popular culture reflects legal culture. Does popular culture in turn affect legal culture, or the law itself? Very possibly. This question too must be explored. Not that the detective story is the only aspect of culture that affects perceptions of crime. "News" about crime is probably even more important. Actual crime rates and actual practices within the criminal justice system are also important. But the detective story may well be one piece of the picture. These fictions help form images in peoples' minds, and (more to the point) they help spread and accentuate existing images.5 These stories have definitely participated, we think, in the creation of what has been called the "culture of fear."6 The connection between fiction and fact is also the connection between imaginary threats and real threats to society (measured, however crudely, by crime statistics). Thus, if we look at modern crime fiction, it may be easier to understand some of the fears that plague modern Americans, and legislatures' reactions to these fears. The first part of this Essay explores the growing scholarly interest in popular culture as an important resource for understanding popular images of law and of the legal system. The second part surveys developments in the detective story genre and in the types of crimes depicted in it. The third part is an attempt to tie these developments within the detective story genre to transitions in society's perception of crime. [popular culture] if we wish to fashion theories that explain anything about law operating in society."7 The term popular culture refers to the "norms and values held by ordinary people, or at any rate, by non-intellectuals, as opposed to high culture, the culture of intellectuals and the intelligentsia."8 People pick up these values from books, songs, movies, plays, television shows, and other works of imagination whose intended audience is the public as a whole.9 Most Americans learn about their legal system indirectly. They have little personal experience with law and lawyers, and they do not read appellate opinions or statutes. They learn about a few great cases that make the headlines (school desegregation, abortion), but what they know about these cases is probably distorted. On the other hand, people think they know a great deal about criminal justice. They are certainly aware of the sensational cases that they see on television. A staggering 97 percent of the population claimed to be familiar with the facts of the O.J. Simpson case; 86 percent were familiar with the investigation of the strange death of JonBenet Ramsey.10 Most of what people know (or think they know) comes, in short, from the media - fact, fiction, or halfway in between - that is, from movies, television, newspapers, magazines, and, of course, from books and stories.11 Millions of Americans watch television series such as ABC's the practice12 every week, and an even larger portion of the population, as we noted, reads detective fiction either regularly or every once in a while. "No legal institution can claim that kind of influence on the public's conception of law and lawyers."13 There is a growing body of literature on the law as reflected in movies, television, and the like,14 although there is undoubtedly a great deal yet to be explored. Most of the stuff of popular culture, as it relates to the law, turns on aspects of criminal justice. This is not surprising. Popular culture ignores most other segments of the law; they are too boring, too technical, too specialized. There are no songs about the Robinson-Patman Act, no movies about capital gains tax, and no television series that puts Medicare or ERISA in the spotlight. On the other hand, television, the movie industry, and popular literature would shrivel up and die without cops, detectives, crimes, judges, prisons, and trials.15 Those who produce popular culture, to be sure, are often wildly off-key even with respect to those parts of the legal system that they deal with so obsessively. Those producers are not interested in educating, but only in entertaining (and in making money). They exaggerate and distort reality - for dramatic effect or for a good story. As Erle Stanley Gardner said about one of his novels made into a television show (The Case of the Dangerous Dowager16): ""It may be bad law, but it's still wonderful drama.'"17 Popular culture certainly helps to shape the lay image of criminal justice; what people think of it, expect of it, and how they feel it should work. And the images and expectations of the lay public must contribute, in some way, directly or indirectly, to the actual production of law. Juries are made up of laymen, for example. As one writer noted, it is "fairly common" for defense counsel to open remarks to the jury by saying, ""This is not a Perry Mason novel. I have no obligation to get someone in the courtroom to confess ... . I have no obligation to prove who actually did it or to do any of the other things that you've seen on television.'"18 In deciding to vote for this or that candidate, people also almost certainly take into account the candidate's expressed ideas about criminal justice. The candidates, in turn, will do almost anything to please their constituents, which often includes promising to change criminal justice in accordance with lay images and desires. The detective story, to be sure, is but one of many products of popular culture. But it is vastly popular; crosses class, gender, and racial lines; and is therefore an important venue for understanding the interplay between law and popular culture. It is interesting to ask why this form of literature emerged when it did; and what its social background was. To begin with, we should note that the emergence of actual detectives was roughly contemporaneous with the development of the detective story. The first detectives in America date from around the middle of the nineteenth century. Detective squads appeared in Boston in 1846, in New York in 1857, in Philadelphia in 1859, and in Chicago two years later.22 The real-life detective is an expert in identities - an expert on hidden crimes.23 This is his distinguishing feature. The ordinary policeman wears a uniform. He drives a car with bright markings and a screaming siren, or he ostentatiously walks a beat. He acts as a visible presence on the streets. He patrols open, obvious space. He trawls the highways, guides traffic, responds to phone calls, controls crowds, and breaks up fights. The detective, on the other hand, explores the underworld, the shadowy domain of crooks, thugs, and con men. His domain is secret, hidden crime. He wears plain clothes, and often guards his identity. Even the private policeman (a security guard, for example) wears a uniform, and deters crime by sheer visibility. He stands, for example, at the entrances to jewelry stores or banks, his gun in plain view, as a deterrent to potential thieves and robbers. The private detective, on the other hand - the private eye - works behind the scenes, lurks in the shadows, and silently follows trails. The emergence of the detective was a response to new kinds of crime challenging a mobile, shifting society - crimes of identity that the ordinary policeman could not possibly cope with. In nineteenth century society, men (and some women) moved about from place to place; towns, cities, and settlements became full of strangers. "Identity" was for the first time problematic, in a way that would have been impossible in a small, isolated village where everyone knew everybody else. People could slip easily from location to location, from identity to identity. In this mobile society, there were new forms of fraud, new "confidence games." The "confidence man" is a crook who pretends to be something he or she is not, as a way of wheedling money out of the hapless "mark." He swaggers into town, pretending to a member of the nobility, or he peddles phony stock market schemes to sucker the gullible out of their savings. The confidence man could hardy emerge in a small, face-to-face society. The confidence man is, almost of necessity, a stranger - someone whose background we do not really know. The detective story plays on similar themes - themes of false identity and hidden motives. In some ways, the detective story is a stylized, fictionalized version of the work of real-life detectives. Detective fiction comes out of the same social background as did the detective. A mobile, rootless, shifting social system harbors infinite chances for mysterious secrets, scandals buried in the dark past, hidden motives, and unknown origins. The detective, in fact and in fiction, cuts through all of these mysteries to the inner core - the truth. There is, indeed, literature about real-life detectives; it often reads like fiction (and was often perhaps partly fiction). An American detective, George S. McWatters, published a book about his career in 1873.24 His book is full of tales of ways in which he foiled crooks, swindlers, and low-lifes of all sorts. As another author put it in 1880, the members of the New York detective force "are shrewd, cool, talented and efficient. They are everywhere, and in all disguises ... . They are unknown to rogues and are therefore successful in their efforts to detect criminals and to relieve their victims."25 The real-life detective "can read a man at a glance. He knows a bogus story from a real one."26 The detectives of fiction tell the same kinds of tales - and even better ones. Sherlock Holmes, created by Sir Arthur Conan Doyle, is probably the most famous fictional detective of them all. Of course, Homes was not actually a detective; he was a talented amateur. Indeed, most "detectives" in detective fiction are not detectives or policemen, and do not work for the government. They are private detectives, or more commonly, rank amateurs. G. K. Chesterton's detective, Father Brown, was a Catholic priest. Agatha Christie's detective, Miss Marple, was a village spinster. Some fictional detectives who detected for a living were just as colorful - Rex Stout's Nero Wolfe, the immensely fat orchid grower who almost never left his brownstone, or Agatha Christie's bald little Belgian, Hercule Poirot, who solved mysteries through abundant use of his "little gray cells." What the amateurs all have in common is skill at reading hidden motives, assessing clues, or at finding out truths buried deep in the past or in the secrets of people who are definitely not what they seem. No one could match Sherlock Holmes, who could tell from a walking stick or from some cigar ash almost everything one would want to know about a man he had never laid eyes on. But all of the detectives of fiction were adept at untying knots. Fictional detective stories are as diverse as real-life detectives themselves. But they can be crudely divided into three types that more or less follow each other chronologically: the classic, the hard-boiled, and the contemporary. Each new type supplemented the older types, rather than driving them out of business. Plenty of writers today write "classic" detective stories (and hard-boiled ones as well), just as some artists and composers choose to write in styles that are hardly avant-garde. And because there are tens of thousands of mystery stories (nobody has read them all, or even a small fraction of them), hundreds are inevitably hard to classify, or conform to several types, or to no type at all. Still, the classification does seem to describe, more or less accurately, an evolution in the form and content of detective fiction.27 A. The Classic Detective Story The setting for the classic detective story - which flourished in the nineteenth and early twentieth centuries - was Victorian England with its genteel country houses. The stories were almost always about people of good breeding, people with money and a position in society. The classic detective story avoided slums, blighted neighborhoods, the dark alleys and tenements of London, the working class, and the dregs of society. Everybody was at least upper-middle class (except for the servants); neither the guilty party nor the victim was ever a stranger, a burglar, a tramp, or an outsider. Most murder took place indoors, not on the street: The body was found in the drawing room, the library, the bedroom, or the parlor. And the setting was a country house, a mansion, or a townhouse - never an apartment or a tenement.28 The central theme was the kind of crime we might call a "worm in the bud":29 crime, pathology, and cruelty concealed behind curtains of bourgeois respectability and upper-class charm. The murderer, whom we discover in the last chapter, is not a hit man, thug, or professional criminal. His or her motives throughout most of the book remain hidden. The murderer may have some secret in his or her past. He or she may kill to protect a reputation, or to inherit an uncle's money before he changes his will, or for some other classic reason, but above all to preserve a place in respectable society.30 Perhaps the best practitioner of the classic detective story - certainly the most successful - was Agatha Christie. Her two main "detectives" were Hercule Poirot, the eccentric little Belgian, and Jane Marple, the country spinster. Miss Marple is shrewd and perceptive. She lives in a picture-perfect village; life there seems utterly harmless and respectable, yet it is the locus of a surprising number of murders. Improbable as it seems to the police and to outsiders, Miss Marple succeeds in solving these crimes. She ferrets out the truth by virtue of her understanding of human nature, and through her deep involvement in village affairs. The classic murder mystery continues to be enormously popular today. Probably fewer take place in a country home or in a vicarage, but these "classics" remain essentially true to the traditional patterns. Many are "closed." That is, the murderer must have been one of a group of guests at the house (or one of the servants, though it is cheating a bit if in fact "the butler did it"). The ideal closed type would present a small number of family members in a house cut off from the world, or locked up tight for the night, so that no stranger could get in. In Agatha Christie's famous novel, And Then There Were None,31 ten people are isolated and trapped on an island, summoned by a mysterious stranger, and then murdered one by one. Even when the group of suspects is not technically closed, it would be cheating (and would disappoint the readers) if a stranger, a burglar, or any outsider at all turns out to be guilty. B. The Hard-Boiled Detective Story Throughout the nineteenth century and the early twentieth century, England had a dominant position in detective fiction. No American detective even came close to matching the towering figure of Sherlock Holmes. There were American practitioners of the classic mystery story, however, and some were exceptionally popular. One of the earliest was Anna K. Green, whose novel, The Leavenworth Case,32 published in 1878, was a runaway bestseller. Another popular writer was Mary Roberts Rinehart (1876-1958), who published The Circular Staircase33 in 1908, and followed it with some forty other examples of the art.34 Her works were variations on English themes, with an American setting and somewhat less of the flavor of the vicarage and the village tea house. In the 1920s, however, American authors began to produce a new kind of detective fiction - the hard-boiled detective story. As David Lehman put it, the hard-boiled detective novel was born against a backdrop of prohibition and gangsterism - and came of age around the time the bubble of American bliss burst and the nation headed into its age of jitters. From the modern metropolis the new genre derived its sense of gutter glamour as well as its distinctive idiom: hard-edged, frank, streetwise, sarcastic.35An American author, Carroll John Daly, is given credit for inventing the hard-boiled story. He created Race Williams, a tough-as-nails detective who kept a loaded gun beside him while he slept, associated with women of the underworld, and was prone to violence.36 Daly was followed by others. The most famous were Dashiell Hammett, with his nameless detective, "The Continental Op," and then Sam Spade; and Raymond Chandler, whose hero was Philip Marlowe. Chandler, in particular, produced a style of prose that was lean, precise, and evocative. His writing conveys an air of defeat, dreariness, and decay. The hard-boiled detective mistrusts established institutions. He is surrounded by dangers, violent men, and tough women. He is violent, seedy, sometimes a hard drinker, heavy smoker, and promiscuous.37 One key element in these hard-boiled books is the corruption of society. In the classic detective story, society is not overtly corrupt. It is, in fact, genteel and well-managed. The murder is a jarring, unexpected event, which disturbs the atmosphere of (apparent) peace and tranquillity. Someone who appeared to share the bourgeois values of English (or genteel American) society committed the crime - a person who in fact was a blackmailer, or who (despite his appearance) was dangerous, willing to kill for love, money, or jealousy. In these stories there is no general attack on society. The forces of law and order are perhaps bumbling and ineffective, but they are basically honest; they are on the side of the good and the true. They are unable to compete with the likes of Sherlock Holmes or Miss Marple or Nero Wolfe, but then who can? The hard-boiled detective story, on the other hand, portrays a pathological social order. The police, the mayor, and the whole apparatus of government may be corrupt. Chandler's Philip Marlowe, in Farewell, My Lovely,38 speaks about the mythical town he calls Bay City: "The law in this town seems to be pretty rotten ... . It's probably no crookeder than Los Angeles. But you can only buy a piece of a big city. You can buy a town this size all complete."39 In Chandler's world, no one can trust anyone else. It is a dog-eat-dog world. There are honest cops, but many are secretly dishonest. The action takes place in grubby offices, bars, dark alleys, and in vacant lots of the urban underworld. Sometimes, as a counterpoint, the stories also portray the gaudy, vulgar homes of rich criminals and politicians. The suspects are not confined to a particular place or class, but are drawn from a large, floating mass of people on the fringes of respectable society, if not at war with it. It is low-life America instead of upper-class England. Street rats, gangsters, and crooked politicians fill the pages, instead of the country gentry. Or rich, dangerous women and men, who have risen from the sewers to a life of affluent criminality. The detective himself may be part of the pattern of corruption. His methods are certainly bound to be unorthodox - methods foreshadowed by real-life detectives of the late nineteenth century, who themselves would often stoop to tricks and subterfuge to gain their ends.40 In the hard-boiled novel, sex and violence are integral parts of the story. This is the world, not only of Hammett and Chandler, but of Mickey Spillane and a whole generation of followers. Despite the obvious differences between classic and hard-boiled novels, there are also similarities between them. The hard-boiled detective, however grubby he may be, maintains a certain degree of integrity. Underneath his rough surface he preserves a measure of rude, jagged honor. The prototype is Humphrey Bogart's brilliant portrayal of the private eye in The Maltese Falcon,41 a movie made from Hammett's novel. Although the social setting and the types of criminals are different, both forms are faithful to the demands of logic and of rationality; both are based on the assumption that murders are not random and that murderers kill for a reason. The motives for crimes might change somewhat over time, but basically, they are familiar human motives: money, power, jealousy, and hate. In fact, rationality is the key to both classic and hard-boiled novels. Ronald Knox, in his well-known article, A Detective Story Decalogue,42 set out ten "rules" that the detective story must follow. The second of these is that "all supernatural or preternatural agencies are ruled out as a matter of course."43 If something seems uncanny or supernatural, it will be shown to be, in the end, perfectly human - a conjurer's trick. Thus, in a story by Dorothy L. Sayers, Lord Peter Views the Body,44 many people, including Lord Peter Wimsey, her detective, see a ghostly carriage at night drawn by headless horses that gallop silently overground, guided by a headless coachman.45 But it all turns out to be hocus-pocus, which Wimsey succeeds in explaining in quite rational terms. The same is true of the whole multitude of "locked door"46 and impossible murders - John Dickson Carr was a specialist in these. In the end, there is always a logical explanation,47 and a rational solution. The perfect logic of crimes and of crime solving is what made possible the "armchair detective," like Rex Stout's Nero Wolfe. Wolfe is obese and utterly devoted to his beloved orchids. He solves crimes by logical deduction from information that his henchman brings to him (and from interviews in his home, between meals, with people involved in the mysteries). The hard-boiled detective story, too, ends neatly, with a solution, or at least a resolution of sorts. Society has not been converted from corruption to utopia, but one small part or aspect of the corruption has been cleaned up, one murder or a series of murders solved. Thus, hard-boiled detective fiction does not promote or glorify disorder in society. Eric Routly correctly states that "the detective story which conforms to the basic design of the form is the most moral kind of literature there is ... . Its whole assumption is that of law and order."48 There is, indeed, plenty of disorder and illegality in hard-boiled fiction, but the hero usually surmounts it. What message do these stories convey? Although they send a message of law and order, they definitely do not transmit a message of due process or of scrupulous concern for constitutional rights. In these stories, it takes special, extralegal, and desperate measures to cope with a corrupt society. Fire must be fought with fire. These stories, then, reflect and encourage the world of, say, Dirty Harry. Technicalities, and the "coddling" of criminals are only another form of corruption. Just as the police have always believed in a little wholesome brutality, in the liberal use of the nightstick and in other less genteel methods, including the "third degree," so society as a whole probably believes that the corrupt, lawless world of gangsters and crooks must be dealt with severely and without too many niceties. Society, like the hard-boiled detectives themselves, must take off its gloves to fight crime. C. Contemporary Crime Novels: A World of Fear and Illogic Another shift in the genre took place during the last three decades of the twentieth century. Contemporary novels have grown out of the hard-boiled mysteries, but are in some ways strikingly different. To be sure, many mysteries continue the tradition of the hard-boiled detective.49 But other new novels do away with the basic premise of both classic and hard-boiled detective fiction - the premise of logic and rationality. Increasingly, the killers are not jealous lovers, power-hungry politicians, disappointed heirs, or victims of blackmail, but killers who kill for no reason. Many of them are serial murderers. Serial killing has traits which are "antithetical" to the conventions of traditional detective fiction.50 The murderer kills, as one author puts it, "for non-rational motives."51 His victims are usually strangers. This fact "challenges some of the most cherished assumptions of traditional detective fiction, namely, the belief that murderers always have "rational' motives for murder, such as greed or jealousy, and the belief that murderers always have some kind of personal relation with their victims."52 It is probably not a coincidence that so many detective novels in recent years have had plots that focus on serial killers. This kind of fiction subverts the conventional process of investigation.53 It downgrades the importance of what was crucial to Sherlock Holmes or Ellery Queen or to any of the other classic detectives, and even, to a degree, to Philip Marlowe or Mike Hammer: a deductive power and a nose for hidden motives. Here, there are no hidden motives - at least, not the ordinary kind. There is only a pathological lust for blood. The detective's tools, in novels of this sort, are not the tools of Sherlock Holmes or of Nero Wolfe. They are certainly not Hercule Poirot's little gray cells. Serial killers cannot be fought with Miss Marple's keen village intuition. The only weapons against them are weapons of science and technology. We cannot trust intuition, we cannot count on logical deduction, but we can trust scientific methods - computerized fingerprints, DNA tests, and the like - to track down and identify the killer. In older detective novels, forensic science played only a minor role, or no role at all. There would be no fun, no solving of puzzles, in identifying a killer through fingerprints and DNA. But contemporary crime novels are full of science, crammed to the brim with forensic and high-tech doodads. Contemporary detective fiction includes figures like Patricia Cornwell's Dr. Kay Scarpetta, the Chief Medical Examiner of the State of Virginia. Dr. Scarpetta, a beautiful middle-aged woman, and her teammate, Richmond police captain Pete Marino, are challenged with crimes that could not possibly be solved in Nero Wolfe's brownstone, or in Hercule Poirot's fertile brain. The criminals Dr. Scarpetta hunts are cunning and beyond ordinary human emotions. They are like werewolves: beasts in human form. In Black Notice,54 one of the Scarpetta novels, a dead body arrives in the United States, horribly decomposed, in a cargo container. Nobody knows the identity of this victim. Dr. Scarpetta uncovers the secret of this dead body, and the secret of the killer, through her mastery of science: autopsies, described in minute detail; tracing of hairs and fibers and the like; and similar work in the crime labs. The killer in Black Notice turns out to be a vicious psychopath, who has killed and mutilated many victims out of sheer blood lust. The killer suffers from a rare medical condition that makes him look almost animal-like. It has forced him to remain mostly a recluse. He ventures out of hiding only to destroy helpless victims. Blood types, bits of fabric, and DNA traces unlock the mystery in many of these novels. Serial killers, though their minds are warped and deadly, still leave traces or clues behind them - sometimes in the form of a modus operandi, like a kind of signature of death. The trail that leads to the solution is quite different from the trail in, say, an Agatha Christie novel. In a classic mystery solving the crime means eliminating all of the (known) suspects except one. In a Patricia Cornwell novel, by contrast, there are no suspects; science leads the doctor to zero in on a figure whose very name is unknown, perhaps until the last pages of the book. The serial killer is not, of course, entirely new. The foggy streets of London in the late nineteenth century were the domain of Jack the Ripper, one of the most famous real-life serial killers. Jack the Ripper has never been identified, despite the best efforts of the London police, and a body of literature full of speculation and guesswork. But the salience of the serial killer in detective and police novels is something of a new phenomenon. In the period following the 1980s, the serial killer became more and more a theme of detective literature. A number of movies have been made about Jack the Ripper.55 The mad killer who kills strangers is a theme of Alfred Hitchcock's Psycho56 and Frenzy.57 It is also the theme of "slasher" movies, of the immensely popular film, The Silence of the Lambs,58 and of the sequel to this movie, Hannibal,59 which opened in 2001. Dozens of books also have provided "true crime" accounts of serial killers, or have at least explored the theme in fiction.60 paranoia, which some authors have described as a culture of fear.62 People feel desperately insecure, particularly in the cities. The streets seem unsafe; the parks are dark and deadly at night. No one feels they have any sanctuary, not even behind a barricade of locks and bolts. The media are full of horrifying, dramatic stories. One hears of girls raped and murdered in their own homes. Strangers abduct children from right under their parents' noses, and in such ordinary places as the suburban mall.63 Young children open fire on their classmates at school. Serial killers lurk in the darkness, consumed by weird lusts, murdering innocent people in cold blood. No longer, it seems, are there any safe havens - there is nowhere to hide. The culture of fear is, to a great extent, created, reproduced and circulated through the medium of popular culture. Printed and electronic media incessantly chase after the sensational; they chronicle crimes that are startling and horrifying, day in and day out. We live in an era of "tabloid justice."64 Rape and murder in Iowa become headline news all around the country. The extensive coverage of crime in the press generates and reinforces the idea that crime is everywhere; anxieties and perhaps unfounded fears take over society.65 Prime-time television series like N.Y.P.D. Blue,66 X-Files,67 Profiler,68 Cracker,69 or even Buffy the Vampire Slayer70 do their share to spread the culture of fear. They help promote the paralyzing dread of random killing. Detective fiction is another way in which the culture of fear spreads throughout the population. It reflects and also produces a xenophobic and paranoid society obsessed with suspicion of strangers. Contemporary detective books tap into the deep anxieties of American society about strangers or aliens in our midst. The extraordinary popularity of the genre turns it into an important vehicle for "educating" through entertainment. The media inject implicit and explicit messages into the culture and into the brains of viewers and readers. Both classic and hard-boiled detective stories often, to be sure, described gruesome murders. They also showed a deep concern for hidden dangers. But they also carried a message that might have been of some comfort. Criminals were rational actors with such motives as greed, jealousy, or status. "It was permissible that the people in a story should think that a crime was irrational ... but the reader knew that there would always turn out to be a personal motive."71 Crimes were generally explicable in a logical way. Thus detective stories supported "our cherished illusion that man is a rational animal."72 Nothing in these stories interfered with the readers' beliefs that they were, in general, safe and secure. It was easy to avoid the dark world of crime. The classic detective story was located in the closed mansions of upper-class England. The average reader got a peep show into the dark side of the world of the rich and powerful. The hard-boiled detective story relocated the scene of the crime from the upper-class British mansion to the more familiar streets of New York, Chicago, and Los Angeles. Again, the message between the lines was reassuring. There were ways a person could protect him or herself. A person could avoid crime, violence, and bloodshed simply by staying out of bad neighborhoods, and by avoiding gangsters and pushers. Even the cancerous corruption of the cities in the hard-boiled novels was something the ordinary person could and did stay clear of. At the end of the day, the detective brought at least some kind of cleansing and relief. This reassurance, however, disappears completely in contemporary detective fiction. Its message is, to the contrary, that crime is everywhere, not merely in Harlem or on the dark foggy streets of London. What is worse, criminals are irrational. Murders are perpetrated with no reason or motive except for the blood lust of psychotics - monsters who take the form of ordinary people. These strangers may look like us, but behind the familiar mask lurks a cunning serial killer. This man (it is almost always a man) could be somebody we pass by in the streets without noticing. He might be intelligent, good looking, and charming, like the character played by Keanu Reeves in the recent movie, The Watcher.73 Or, he could be a next-door neighbor, a coworker, or a face in an anonymous crowd. Everyone becomes a threat, a potential killer. There are other dangers, too, besides these psychotics. There are terrorists and fanatics who blow up buildings and plant bombs in crowded places. There are unstable men who "snap" and spray everybody in their post office or other workplace with bullets. There are sick kids who shoot each other in the school yard. And so it goes. The only way to avoid crime is to be constantly alert, or to expose hidden dangers through metal detectors, surveillance cameras, and weapon searches.74 The culture supports all sorts of tests, searches, and precautions. But even these may not be enough.75 The culture of fear has had a real impact on legal order. It has certainly played a role in producing the wave of toughness on crime that has swept over the country, leading to an explosion of incarceration, draconian drug policies, the "three strikes" law in California,76 and statutes such as "Megan's Law."77 Every state has some sort of registration law today, some variant of Megan's Law, which hangs a kind of leper's bell around the neck of sex offenders. The movement spread across the country like a prairie fire. The crime that inspired the original statute tapped into citizens' worst nightmares. Megan, after all, was a "young white female killed near her home in a suburban area coded in popular political geography as safe."78 Other laws responded to the same public demands. "In just an eighteen-month period ending in mid-1998, more than fifty laws had been passed by state legislators" imposing drastic punishment on criminals, or calling for involuntary commitment.79 Horrible crimes, often against innocent children, created public outcries that led to these laws. Interestingly, many of them (like Megan's Law) are popularly known by the name of the victim.80 Florida has the Jimmy Ryce Act, named after a nine-year-old boy who stepped off a school bus in September 1995 and disappeared. A ranch hand, Juan Chavez, was convicted of kidnapping the boy, raping him, murdering him, and dismembering him. Jimmy Ryce's parents lobbied for the involuntary commitment of sexually violent predators, and a law to this effect went into effect in 1999.81 In Kansas, there is Stephanie's Law.82 Stephanie Schmidt was a young woman raped and murdered by a coworker who had recently been released from jail after serving a sentence for rape. This law also called for involuntary civil commitment of sex offenders.83 In New York, there is Jenna's Law,84 named after a murder victim. This law eliminated parole for first-time violent offenders. In reality, most killings are committed by someone the victim knows; real-life murders usually take place within the family or among friends. Death lurks at home or in the neighborhood bar for hundreds of men and women who would never dream of walking the streets in the dark of night. The Bureau of Justice Statistics reported that of some 10,000 homicides in one year in which the relationship between victim and killer was known, only 20 percent were murders by strangers; 40 percent of the victims were "acquaintances" of the killer; most of the rest were murders by family members, boyfriends, or girlfriends.85 Yet these facts somehow disappear from social consciousness. Society somehow forgets the lethal boyfriend or husband. But the psychotic serial killer haunts us out of the pages of detective fiction, and stares at us on television and in the newspapers, completely taking over the mind of the public. Of course, there really are serial killers. The threat may be exaggerated, but it cannot simply be dismissed as a social construction. Yet why so much attention? There are those who gain an advantage from magnifying the problem of the serial killer. Federal law enforcement agencies benefit from the notion that criminals are on the loose, not tied to any particular locality, crossing state lines at will in search of fresh victims. Newspapers and television stations benefit from juicy, blood-gushing stories. There is money to be made in pushing the envelope, in going to the very margin of what is printable and publishable. This is not entirely new; there were sensational "true crime" reports in the nineteenth century.86 But in contemporary society, almost everything is permissible: in the movies, in fiction, in the press (if not in the "respectable" press, then in the fringe press), or on the Internet. If you go to the limits of taste and propriety, you are going very far indeed. So if you came here thinking, Gee, there's going to be a neat little murder ... in a town house and some blue-haired lady will solve it ... when she isn't tending her rose garden, then you came to the wrong city ... . In this city, things were happening all the time, all over the place, and you didn't have to be a detective to smell evil in the wind.ED MCBAIN, THE BIG BAD CITY 26 (1999). 50. David Schmid, The Locus of Disruption: Serial Murder and Generic Conventions in Detective Fiction, in THE ART OF DETECTIVE FICTION 75, 75 (Warren Chernaik et al. eds., 2000). 51. Id. 52. Id. 53. See David Richter, Murder in a Jest: Serial Killing in the Post-Modern Detective Story, 19 J. NARRATIVE TECH. 106, 106-08 (1989). 54. PATRICIA D. CORNWELL, BLACK NOTICE (1999). 55. See DONALD RUMBELOW, THE COMPLETE JACK THE RIPPER (1975). For an extensive bibliography about Jack the Ripper, see ALEXANDER KELLY, JACK THE RIPPER: A BIBLIOGRAPHY & REVIEW OF LITERATURE (1973). 56. PSYCHO (Paramount Pictures 1960). 57. FRENZY (Universal Pictures 1972). 58. THE SILENCE OF THE LAMBS (Orion Pictures 1991). 59. HANNIBAL (MGM et al. 2001). 60. See PHILIP JENKINS, USING MURDER: THE SOCIAL CONSTRUCTION OF SERIAL HOMICIDE (1994), especially chapter four, "Popular Culture: Images of the Serial Killer." 61. See ERIC H. MONKKONEN, MURDER IN NEW YORK CITY 9 (2001). 62. See GLASSNER, supra note 6; Tonya L. Brito, Paranoid Parents, Phantom Menaces, and the Culture of Fear, 2000 WIS. L. REV. 519, 519-20. 63. See Brito, supra note 62, at 519. 64. See generally FOX & VAN SICKEL, supra note 5. 65. Marc Galanter points out a similar phenomenon in the civil justice system. Stories about lawsuits - mostly tort cases - are distorted, sensationalized, and circulated by the media. These stories tend to create beliefs and perceptions about the legal system - perceptions that "people are suing each other indiscriminately about the most frivolous matters, and juries are capriciously awarding immense sums to undeserving claimants," and that "the system is arbitrary, unpredictable, berserk, and demented; it has spun out of control." Marc Galanter, An Oil Strike in Hell: Contemporary Legends About the Civil Justice System, 40 ARIZ. L. REV. 717, 717 (1998). 66. N.Y.P.D. Blue (NBC television broadcast, 1993-current). 67. X-Files (Fox Network television broadcast, 1993-current). 68. Profiler (NBC television broadcast, 1996-2000). 69. Cracker (ABC television broadcast, 1993-1995). 70. Buffy the Vampire Slayer (WB Network television broadcast, 1997-current). 71. JULIAN SYMONS, MORTAL CONSEQUENCES: A HISTORY - FROM THE DETECTIVE STORY TO THE CRIME NOVEL 3 (1972). 72. McAleer, supra note 4, at 21 (quoting Rex Stout, the famous detective fiction writer). 73. THE WATCHER (Universal Pictures 2000). 74. See generally Brito, supra note 62. 75. This paranoia also appears in some aspects of science fiction. In the classic 1950s movie, INVASION OF THE BODY SNATCHERS (Allied Artists Pictures 1956), aliens from outer space take human form. This movie can be taken either as a parable of McCarthyism - that is, that the communists are everywhere, hiding in the shape of good old Americans - or, sending the opposite message, as attacking the witch hunts and the culture of fear. See id. The aliens are just like us; it is impossible to tell whether a person who is the spitting image of your neighbor really is your neighbor or some kind of inhuman from another planet who has stolen your neighbor's identity. Science fiction is suffused with the culture of fear. In many science fiction stories and movies, the whole planet is under attack by enemies of humanity who come from outer space - aliens with superhuman powers or who are from advanced civilizations with no more regard for human life than we have for the insects we squash underfoot. No locked door, police guard, or ordinary security measures can give the world security from enemies of this type. 76. See generally FRANKLIN E. ZIMRING ET AL., PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU'RE OUT IN CALIFORNIA (2001). 77. "Megan's Law" is named after a seven-year-old girl, Megan Kanka. A convicted sex offender, out of prison and living near the Kanka home, murdered this little girl. Megan's Law requires sex offenders to register. There are provisions in the law to make sure the neighbors are aware of who they are harboring in their midst. New Jersey's Megan's Law is officially called the Registration and Community Notification Law, a ten-bill package. See N.J. STAT. ANN. 2C:7-1 to -5 (West Supp. 2000). Federal legislation conditions certain federal funding on the adoption of sex offender registration laws and has stimulated the passage of similar laws. See 42 U.S.C. 14071 (2001); see also Jennifer L. Poller, Provisions of Megan's Law Held Unconstitutional, 12 LAW. J. 2 (1999). 78. Jonathan Simon, Megan's Law: Crime and Democracy in Late Modern America, 25 LAW & SOC. INQUIRY 1111, 1137 (2000). 79. GLASSNER, supra note 6, at 63. 80. See id. 81. See Mari M. "Miki" Presley, Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators' Treatment and Care Act: Replacing Criminal Justice with Civil Commitment, 26 FLA. ST. U. L. REV. 487, 488 (1999). The act is FLA. STAT. ANN. 916.30-.49 (West Supp. 1998). 82. See KAN. STAT. ANN. 49-29a01-59-29a17 (2000). 83. See id. 84. See N.Y. PENAL LAW 60.12 (McKinney 1998). 85. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1998, at 290-91 tbl. 3.133 (1998). 86. See KAREN HALTTUNNEN, MURDER MOST FOUL: THE KILLER AND THE AMERICAN GOTHIC IMAGINATION (1998). |
