three faces of evil, The

Georgetown Law Journal, Jan 1998 by Colb, Sherry F

JEKYLL ON TRIAL: MULTIPLE PERSONALITY DISORDER & CRIMINAL LAW. By Elyn R. Saks with Stephen H. Behnke (New York: New York University Press. 1997). Pp. xii, 209. $29.25.

REVIEWED BY SHERRY F. COLB*

INTRODUCTION

In the famous story of Dr. Jekyll and Mr. Hyde, Jekyll ultimately decides to take his own life rather than tolerate the continued violence and destruction wrought by his evil alter ego, Hyde.' Jekyll's act is noble and permits his audience to evade the difficult question of whether it is fair to punish Jekyll for Hyde's offenses. Jekyll on Trial, written by Elyn Saks (with the assistance of Stephen Behnke), addresses this difficult question and, in the process, presents a thoughtful and thought-provoking exploration of how our criminal justice system should handle an increasingly common mental illness known as multiple personality disorder (MPD).2 As Saks aptly observes, the disorder has long held a great fascination for the public, evidenced by its role in such films as Psycho,3 The Three Faces of Eve,4 Sybil,5 and the contemporary Primal Fear.6 A "multiple," i.e., a patient who suffers from MPD, manifests his illness by experiencing himself not as one unified and continuous individual, but rather as two or more persons who alternately (and sometimes simultaneously) perceive and interact with the world around them in distinctive (and even competitive) ways.

Empirical studies are in their nascency, but they have already shown that as the various "alters" (i.e., individual personalities) "come out" of their respective dormancies, each one remembers different events and, most strangely, may even have distinctive brain wave patterns and physiological responses to stimuli, including allergies.7 Though Saks provides a sophisticated and comprehensive clinical description of the disorder in an appendix, the most interesting and challenging ideas in the book emerge as philosophical rather than empirical questions about the nature of personhood, the moral meaning of criminal responsibility and punishment, and the fairness of incarcerating persons who are deemed nonresponsible for their destructive behavior. This essay will therefore use the concept of MPD as a point of departure for a more general discussion of civil confinement of the mentally ill and its relationship to criminal incarceration.

Part I of this essay summarizes and discusses Jekyll on Trial. The succeeding Parts evaluate and ultimately reject the author's overarching assumptions that society may confine a killer without condemnation and that society may justly distinguish between the mentally ill and everyone else in implementing a nonretributive regime of preventive detention.

Part II examines five arguments that Saks advances to distinguish between a prison and a mental hospital. The distinctions include the blame, the stigma of wrongdoing, and the guilt attributed to prisoners but not to mental patients who are dangerous. Part II then argues that these distinctions are not persuasive.

Part III considers in greater detail Saks's assumption, shared by much of our legal doctrine, that society holds blameless a dangerous person who cannot control his violence. This Part demonstrates that the assumption is problematic because it neglects an important strain of criminal law jurisprudence that blames people for their "evil" inclinations: We sometimes consider the person who acts in harmful ways that seem dictated by her character to be most, rather than least, deserving of condemnation and punishment. The Part illustrates this phenomenon first by analyzing Hume's approach to culpability and then by treating such legal examples as the role of predisposition evidence in the entrapment defense and the content of repeat offender legislation, that manifest the law's inclination to classify compulsive criminals as among the most, rather than the least, blameworthy.

Parts IV and V challenge the related contention that some persons (who may not be culpable) are factually "dangerous" and that an objective, honest inquiry will disclose which persons possess this dangerousness quality. Part IV suggests that dangerousness is not a feature of individual persons but rather a characteristic of situations that typically include two or more persons. It argues that society, in attaching restrictions or requirements aimed at reducing the risk of injury, makes a normative selection of one person over others who inhabit a situation. This selection process, moreover, cannot be neatly reduced to a mechanical formula in which the "source" of danger is restrained and burdened while the "victim" or probable injured party is free of restraints. To illustrate the complexity of dangerousness assessment, the Part includes an analysis of: the duty to retreat, present in many criminal homicide statutes; the tort law's allocation of responsibilities between plaintiffs and defendants; and the fightingwords exception to First Amendment freedom of speech.

Part V argues that society has sometimes generated pernicious and discriminatory legal rules in the guise of responding neutrally to objective facts about dangerousness. Specifically, the law has circumscribed the sexual freedom of women as an accommodation to the perceived lust and passionate rage of men.