Criminal justice in the middlebrow imagination: The punitive dimensions of Making a Murderer

Introduction

Since the arrival of shows like Cops in the late 1980s, pseudo-documentary ¹ depictions of non-actors committing, policing, and punishing crime have comprised a large chunk of reality television. Crimesploitation, LaChance and Kaplan the term we use to describe this sub-genre of reality television, is exploitative and reactionary (LaChance and Kaplan, 2019). Unlike other genres of reality television, ² which portray the social worlds of the wealthy or put participants into competition with one another, crimesploitation depicts individuals encountering the criminal justice system. Those it depicts as criminal do not benefit from their depiction. On the contrary, they are normally degraded for the enjoyment of mass audiences (Fishman and Cavender, 1998).

Ideologically, crimesploitation traffics in law and order punitivism, an

ideology [that] celebrates police or executive authority while casting suspicion on judicial decision making; bemoans commitments to due process and the rights of criminal defendants; constructs criminals in simplistic terms as evil and monstrous others; presents victims as innocents whose purity and goodness the community affirms in the act of punishment; and, finally, authorizes the harsh, extra-legal, and humiliating elements of punishment as a crucial and necessary counterpart to [the state’s] modern, rule-bound, institutional logics. (LaChance and Kaplan, 2015: 3–4)

Doyle (2003) explains that crimesploitation works to make law and order punitivism seem like common sense by inviting viewers to identify with law enforcement. Cops, for instance, brings viewers on a virtual “ride along,” where they can hear officers explain their idealistic motivations for joining the force, witness the violence of officers taking down fleeing criminals, and enjoy the sense of closure that accompanies their arrests of suspects. Police officers, the show suggests, are the thin blue line protecting a virtuous public from predation by mostly black and brown criminal others.

At first glance, a program like Cops seems to contrast sharply with a recent spate of serialized television and radio documentaries aimed at studying the criminal justice system through an in-depth examination of cases. These productions present themselves as operating fully within the genres of documentary film or radio, critical in their orientation to legal authority, out to probe beneath surface-level appearances. Whereas familiar forms of crimesploitation are “more about order than law” (Cavender and Fishman, 1998: 6), these programs treat the rights of criminal defendants as valuable checks on power rather than impediments to justice. They tacitly embrace a “liberal-legal model of American law” that underlay the Warren Court’s criminal law revolution in the 1960s. This legal liberalism was driven by a commitment to “the primacy of atomistic individual rights and due process,” a desire to make law equally available to all citizens, and a recognition that the price we must sometimes pay for these goods is that “[s]ometimes the innocent suffer while the guilty are able to capitalize upon their misdeeds” (Kohm, 2006: 708).

It is easy to imagine how contemporary programs that appear to embrace the principles of legal liberalism might serve as an antidote to law and order punitivism—and, by extension, as a counterweight to crimesploitation programs. In what follows, though, we argue that some of these explorations of criminal justice in the United States are more properly understood as middlebrow ³ crimesploitation. We use one recent and well-known example of this genre to argue that a text that extols legal liberalism can nonetheless reflect and reinforce the foundations of a punitive culture. Despite—and sometimes because of—their embrace of legal liberalism, these middlebrow programs sometimes legitimize the foundations of a culture that has become increasingly hostile to the rights of criminal defendants and prisoners. Just as the punitive logic of the criminal justice system reshaped other domains of governance in the late 20th century (the home, the school, the workplace) (Simon, 2007), it has crept into the rhetoric of its critics.

Our case study is the Netflix television program Making a Murderer, a 10-part documentary miniseries that briefly captured widespread attention in 2016. Like a number of recent serialized documentaries, Making a Murderer dissects a murder case, offering its audience the opportunity to become jurors on an “alternative trial” of the accused, Steven Avery and Brendan Dassey, in which different theories of the crime are explored. ⁴ Like its counterparts, the documentary appears to challenge law and order punitivism by showing how defense attorneys are fundamental bulwarks against sloppy or corrupt agents of the state. In some ways, however, the miniseries is as much a symptom of a punitive culture as it is a critique of it. In the name of criticizing prosecutorial authority, Making a Murderer coopts, rather than offers a meaningful alternative to, the premise that bad actors ought to suffer harsh punishment. It does so by fetishizing the question of innocence, adopting a melodramatic frame, and perpetuating a procedural rather than substantive vision of justice.

To reach our conclusions, we undertook a close reading of Making a Murderer and the popular discourse it inspired. Operating from a critical humanities rather than social scientific perspective, we brought to our viewing of the text a set of questions: How does the series represent the criminal justice system, both as a reified “thing” and as individual actors working in law enforcement? Where, how, and to what end do the filmmakers draw connections—or fail to draw connections—between the unique particulars of the Avery and Dassey cases and the broader, macro-level structures of criminal justice policy and practice? How do the emotions solicited by the documentary (its pathos) and the reasoning set forth within it (its logos) work with or against the filmmakers’ efforts to make a film that subverts the law and order punitivism of the late 20th and early 21st centuries?

Our goal here is not to offer a comprehensive content analysis of Making a Murderer. Nor is it to make claims about the effect of the text on audiences’ perceptions of crime and punishment. Rather than focusing on identifying a dominant meaning or demonstrating a measurable effect, we evaluate Making a Murderer according to the philosophical or ideological aspirations of its creators, Laura Ricciardi and Moira Demos. The two have said that their motivation was to see if the criminal justice system had changed for the better in the 20 years between Steven Avery’s wrongful conviction in a 1985 rape case and the 2005 murder case that is the show’s focus (Browne, 2016), and that they set out to make “a social justice film” (Blythe, 2016). We argue that in a number of crucial ways, the text—and texts that adopt its conventions—fail to achieve that goal.

Our work follows a recent but already rich body of scholarly work on the cultural life of crime and punishment in the field of cultural criminology. Hayward and Redmon (2017) explain that cultural criminology is:

the placing of crime and its control in the context of culture; that is, viewing both crime and the agencies of control as cultural products—as creative constructs . . . [T]he experience of crime and crime control is shaped by the meanings that are assigned to it, and by the cultural stockpile of historical references, established and evolving vectors of power, and common everyday perceptions from which these meanings are drawn.

Visual criminology, the study of “visual culture and the iconography of crime and punishment,” works within cultural criminology’s broader mission of examining the sources of “common everyday perceptions” by studying image-based representations of crime and punishment produced for wide audiences—from lowbrow reality television to highbrow art shows at revered cultural institutions.

Visual criminologists are especially concerned with the relationship between consumers of media representations of crime and punishment and the social world they depict. Brown (2009: 9-10) notes that the typical consumer of such media is a “penal spectator” who is

so disconnected from the practice of punishment as to be simply a voyeur, yet in a context where her experience carries profound privilege, authority, and moral justification . . . Removed from formal institutions of punishment and the individuals they house, the subject is afforded the convenience of the highly mediated, fleeting gaze, looking in on the world of punishment in a manner that does not force or ask observers to speak back or engage in dialogue. This kind of looking is fundamentally voyeuristic, distracting, and yet authoritative, inhibiting a deeper interrogation of punishment.

Texts, however, can encourage or discourage viewer complacency about the legal violence and suffering they depict (Carrabine, 2014). In what follows, we argue that Making a Murderer perpetuates a “regime of representation” that discourages a deeper interrogation of the criminal justice system (Carrabine, 2014: 154).

Making a Murderer, the “innocence revolution,” and the middlebrow imagination

While documentaries investigating a defendant’s innocence or guilt have long existed, ⁵ a new wave of serialized “true crime” stories captured the middlebrow imagination in 2015 and 2016. Making a Murderer (2015) was part of a triad of “extra-judicial investigations,” along with The Jinx and Serial, that was covered extensively in media outlets (Schulz, 2016). This new wave has continued, with new middlebrow serials appearing on Netflix, including The Staircase (2004/2018) and The Keepers (2018). We argue that these shows represent a contemporary iteration of the true-crime genre—ostensibly serious, “deep dive” investigations into guilt or innocence.

Making a Murderer investigated a murder in Manitowoc County, Wisconsin. Authorities charged Steven Avery and his nephew Brendon Dassey with the murder of Teresa Halbach, a photographer for Auto Trader Magazine who disappeared after visiting Avery’s property to photograph a vehicle in 2005. Avery’s case was notable because he had been wrongfully convicted and later exonerated of sexually assaulting and savagely beating Penny Ann Beerntsen in Manitowoc County in 1985. After serving 18 years of a 35-year sentence, Avery had been freed by DNA evidence in 2003. The documentary tells the story of his initial conviction and exoneration, before probing the merits of the new murder charge. The filmmakers explore evidence pointing toward guilt or innocence for Avery and Dassey, who prosecutors alleged killed her together.

Making a Murderer takes seriously the possibility that county officials conspired to turn Halbach’s murder into an opportunity to punish Avery for the reputational hit the government took in the aftermath of his exoneration. The filmmakers scrutinize the actions of county officials, revealing everything from problems in the chain of custody of forensic evidence to the improper involvement of investigators with a conflict of interest. Most galling, however, is their depiction of the investigators’ interrogation of Brendan Dassey, who, they suggest, has learning deficits. Taking advantage of Dassey’s limited cognitive capacities, the police, and then, shockingly, an investigator working for his own court-appointed defense attorney, coerce an incoherent and implausible confession from the teenager. Despite the glaring flaws in the prosecution’s cases against them, juries ultimately convict Avery and Dassey of the murder, and the final episodes of the series examine the aftermath: Avery’s return to a prison system that unjustly held him for 18 years, and Dassey’s prospects for a new trial.

In its attention to the question of wrongful conviction, Making a Murderer capitalized on the effect that several decades of DNA-based exonerations of wrongfully convicted persons has had on the public’s perception of the criminal justice system. As awareness of the problem of wrongful conviction rose, some predicted an “innocence revolution” that would lead to the implementation of new safeguards against error and incompetence in the criminal justice system (Marshall, 2004). Others, though, have noted the limits of criminal justice reform efforts that revolve around the problem of wrongful conviction (Cole and Aronson, 2009; Smith, 2010; Steiker and Steiker, 2005; Wiesselberg, 2016). Historically, as Steiker and Steiker (2005) point out, the development of doctrines designed to help the wrongly convicted came at a cost. A focus on innocence by the US Supreme Court in its 1970s and 1980s “truth-seeking” jurisprudence seemed to displace the Warren Court’s commitments to protecting the rights of both guilty and innocent criminal defendants (Steiker and Steiker, 2005: 609). Defendants’ access to relief based on ineffective assistance of counsel or prosecutorial misconduct shrank as a result. Rhetorically, critics argue, a focus on wrongful convictions distracts. It leaves unchanged the oppressive treatment of legally and factually guilty defendants and prisoners (Smith, 2010). ⁶ In his recent history of innocence in the USA, Norris (2017: 177) argues that the innocence movement is not a “new civil rights movement,” but rather a “relatively small but intensely powerful piece of other modern civil rights struggles.” Focusing on innocence might serve as a gateway for some to think about criminals’ rights generally, but elevating it to the status of a “revolution” can cultivate a myopic understanding of what a humane criminal justice system looks like.

Making a Murderer fetishizes the question of innocence and, in doing so, perpetuates that myopia. The show treats the rights Avery is able to exercise meaningfully (the right to counsel) and those his counsel asserts on his behalf (the right to confront witnesses and independently evaluate evidence) as a means to an end, rather than an end in itself. Their value lies not in the protection they offer to a likely guilty man, but in the opportunity they provide to a man trying to prove his innocence. Dean Strang, one of Avery’s attorneys, mentions in the final episode that he “almost hopes Steve is guilty” because the prospect of his twice suffering wrongful conviction is too overwhelming for him. Strang’s comments illustrate how innocence can overshadow the liberal-legal value of protecting constitutional rights per se. The protection of factually innocent people from the devastation of incarceration becomes the most pressing criminal justice policy question, leaving untouched the question of why incarceration is so devastating.

A focus on whether Avery was framed also diverts the audience’s attention away from the systemic problems his case might have been used to explore: access to quality defense lawyers for the impoverished, the challenges of properly collecting, testing, and storing forensic evidence, and the charging discretion vested in prosecutors.

Middlebrow pretensions, lowbrow melodrama

In addition to fetishizing the question of innocence, Making a Murderer shares with lowbrow crimesploitation a melodramatic sensibility. Melodramas are stories told in a “mode of excess” (Brooks, 1976). As Singer (2001) explains, they tend to share five characteristics: they elicit pathos, depict the experience of overwrought emotion, frame the world in morally polar terms, follow a non-classical narrative structure, and gratify the senses. A surfeit of sentimental detail infuses characters, settings, and events with a heightened emotionality. In a typical melodramatic plot, evil, one-dimensional antagonists plot to ruin equally one-dimensional heroes or heroines who are wholly good and innocent.

On its surface, the series rejects lowbrow sensationalism and titillation. One of the series’ most emotionally intense scenes captures Barb Tadych—Brendan Dassey’s mother—storming out of the courthouse after her son is found guilty, only to be accosted by television journalists trying to document her reaction. Her husband, Scott Tadych, yells at the camera operators and journalists nearby, “Get the fuck out of here! Leave her alone! Get the fuck out of here!” This scene is constructed so that the filmmakers and, by extension, the viewers are positioned at a critical distance from the crowd of media vultures surrounding Dassey’s distraught relatives. In another episode, filmmakers present with anthropological detachment footage of an NBC Dateline reporter speaking candidly about the news business. “Right now, murder is hot, it’s what everyone wants, it’s what the competition wants,” she admits. “We’re trying to get the perfect murder story.” By documenting exploitative media coverage of the case, Making a Murderer aims to distance itself from lurid voyeurism.

But for all its apparent handwringing about media sensationalism, the docuseries adopts a fundamentally melodramatic, lowbrow approach to its subject matter, catering to audiences’ desires to consume scenes of powerlessness transcended, revel in the humiliating punishment of a loathsome folk devil, and experience moments of shocking revelation.

David and Goliath, powerlessness and rescue

Melodramas traffic in moral binaries—wholly innocent protagonists, like the classic damsels in distress tied to the railroad tracks, preyed upon by dark-hatted evildoers. Making a Murderer offers a variation on this trope. It does not adopt a vision of the Avery family as the carriers of unadulterated goodness and innocence, but it does depict the family as powerless and naïve.

Throughout the series, a recurring shot periodically fills the screen. The camera pans down the rows upon rows of junked cars that sustain the family’s auto salvaging business. The Avery family, the show frequently reminds its viewers, lives in a junkyard. Those establishing shots punctuate scenes in the series that perpetuate the degrading perception of the family as “white trash” with bad habits (Isenberg, 2016). Bad hygiene is one. Steven’s appellate lawyer for his first case explained that part of the government’s evidence did not make sense because “the victim identified the perpetrator as wearing white underwear when Steve Avery did not even own underwear.” Dependency is another. Chuck Avery (Steven’s brother) and Jodi Stachowski (Steven’s fiancée) are almost always smoking cigarettes, a depiction that taps into popular constructions of lower-class smokers as failed citizens self-medicating in the face of poverty and exclusion. A lack of shame is a third. A bizarre scene near the end of the series features Allan Avery (Steven’s father) wandering around an overgrown garden and ruminating about his son’s fate and the herbs he is growing. It ends with him impulsively plucking a piece of lettuce and stuffing it in his mouth, utterly unconcerned with the unseemliness of casually eating in the middle of an on-camera interview.

It is tempting to call the depiction of the family “poverty porn,” a term used by communications scholars to denote any depiction of the poor that “appeals to an ignoble audience interest, is patronizing and reductionist, robs its subjects of their dignity, and ignores systemic failings” (Wasserman, 2013: 138). More often, though, Making a Murderer perpetuates what Hale (2010) has called the “romance of the outsider,” the post-Second World War tendency of white middle-class Americans to imagine “people living on the margins, without economic or political or social privilege, as possessing something vital, some essential quality that had somehow been lost from their own lives” (Hale, 2010: 3). The reductionist portrayal of the Avery family works in these moments to make them worthy of admiration. Just as classical melodramas portrayed the rural folk as carriers of a bygone goodness in a degraded, urban, cosmopolitan world, Making a Murderer portrays the Avery family as unrefined and naïve, yet uncommonly loyal and loving. Nothing, the docuseries suggests, will stop the family from standing by Avery and doing all they can to bring him home. Indeed, it is because they are unconcerned with appearances that viewers are able to witness the depth of their loyalty to one another.

The depictions of the Avery family’s lack of social and cultural capital are full of pathos: these are vulnerable outcasts, shunned by respectable society. The depiction of their powerlessness sets up the sense of relief that the filmmakers invite the audience to experience when Avery’s defense attorneys arrive on the scene. They save the family from abject defeat by putting up a formidable fight on Avery’s behalf. In a modern variation on a common melodramatic plot, they emerge as the heroes who untie Avery from the railroad tracks as a train conducted by a corrupt prosecutor barrels toward him. The problem with this rendering is that it distorts the reality that most criminal defendants are indigent and never get rescued by defense attorneys with lavish amounts of time and resources to protect them from Goliaths. Prosecutors’ charging discretion gives them an enormous advantage; by agreeing to drop or downgrade charges, they are able to negotiate plea deals in the vast majority of criminal cases. Trials, and the opportunity they afford defendants to ask their peers to evaluate the government’s case against them, are rare events reserved for the privileged. Most defendants in Avery’s position face, as he once did, a criminal justice system in which due process is a cursory frame instead of a constantly insisted-upon value.

The degradation of folk devils

In Making a Murderer, state actors, rather than defendants, are depicted as the bad guys. And the baddest guy of all is Avery’s prosecutor, Ken Kratz. Kratz’s integrity is called into question early in the series. The filmmakers depict him presiding over a press conference after Dassey has confessed to investigators. With barely controlled enthusiasm, he regales reporters with the story of Teresa Halbach’s murder. The tale he tells is chock full of images of sadomasochism and sexual violence. Kraft explains that Avery and Dassey chained Halbach to a bed and disemboweled her. Later, we learn facts that cast obvious doubt on Dassey’s confession and see firsthand the coercive techniques that investigators used on the boy. We learn that no forensic evidence exists to support the story of torture and dismemberment he was led to tell. Ignoring the lack of any corroborating evidence to support the confession, and unconcerned with the effects that his hastily-assembled press conference might have on potential jurors, Kratz visibly revels in this self-serving, extralegal moment of triumph over Avery.

Depictions of Kratz’s prosecutorial recklessness set up the sense of schadenfreude that Making a Murderer invites audiences to feel when Katz’s personal and professional lives later collapse. Shortly after the conclusion of the cases, audiences learn, Kratz was sued by several women for sexual harassment, fired, and discredited, ending up in treatment for sex and drug addiction and narcissistic personality disorder. Viewers who have become increasingly distrustful of state actors involved in the cases are invited to consume with pleasure a punitive spectacle of degradation normally reserved for criminal defendants in lowbrow crimesploitation. Through its treatment of Kratz, Making a Murderer reveals the politically promiscuous appeal of humiliating retribution in contemporary American culture. With enlightened self-righteousness, the film cultivates the very retrograde emotions that have long buttressed the criminal justice system.

Shocking revelations

Making a Murderer features melodramatic moments of revelation that invite responses of shock from viewers. A cliffhanger ending to the fourth episode of the series involves the discovery of evidence that appears to have been improperly handled by authorities. Having obtained a warrant to inspect the contents of the state’s 1985 case file on Steven Avery, defense attorney Jerry Buting stands in a room with a special prosecutor and investigator and inspects a box containing Steven Avery’s blood, a sample drawn from Avery during the investigation phase of his 1985 rape case. The camera zooms in on the edges of the box, revealing that a piece of scotch tape has been used to re-close the seal. A Styrofoam container inside the box also appears as if it has been unsealed and resealed. The camera lingers during these close-up shots of the broken seals, inviting the viewer to inspect and evaluate the break in a piece of red tape marked “EVIDENCE.” Finally, within that container, the clerk finds a test tube of blood. Its seal is also punctured. As the vial of blood is displayed to the camera, Buting is on the phone recapping the events he has just witnessed to his legal partner: “Get this … right in the center of the top of the tube is a little tiny hole, just about the size of a hypodermic needle.” A muffled exclamation of surprise is heard coming through the cell phone. “And,” Buting adds, “I spoke with a Labcorp person already who told me they don’t do that.” As a muffled whoop is heard through his receiver, Buting asks:

Have you fallen on the floor yet or no? Think about it Dean. If Labcorp didn’t stick a needle through that top, then who did? Some officer went into the file, opened it up, took a sample of Steven Avery’s blood, and planted it in the Rav 4. Yeah he knows where we’re going. Game on. Exactly. Game on.

The screen quickly cuts to the credits as urgent, uptempo rockabilly music plays—an adrenaline-pumping response to Buting’s “game on.”

The shock and thrill of the discovery furthers the binaristic construction of the corrupt, obstructionist state actors versus the idealistic defense attorneys who use the law to hold those state actors accountable. It also sustains a focus on Avery’s guilt or innocence, which, as we have suggested, encourages audiences to think of justice in narrow terms—as something that protects the innocent rather than requires the humane treatment of the guilty or the potentially guilty.

The punitive defense of legal liberalism: A case study in viewer response

Audience responses to Making a Murderer illustrate how these melodramatic qualities—powerlessness and rescue, good guys versus bad guys, and shocking “gotcha” moments—can reflect punitive logic, even as the program purports to criticize the state. To get an impressionistic sense of how viewers responded to the program, we analyzed the most popular (or “upvoted”) discussion thread about it on Reddit, one of the largest general interest discussion communities on the internet. ⁷ We argue that this most popular thread confirms that some audience members embraced the production’s punitive subtext. ⁸ Rather than prompting criticism of the criminal justice system, the series elicited a reverence for the tenets of legal liberalism that quickly morphed into a distinctive kind of illiberal punitiveness.

The discussion begins with the post, “Can we pause to applaud two of the best lawyers in the USA? Their sincerity was remarkable. Dean Strang and Jerome Buting are my first call if I get framed for murder” (Reddit Users, 2016; copies of the text also on file with the authors). A conversation about the value of defense attorneys in a liberal democracy ensued. Announcing that he or she was going to play the role of devil’s advocate, one viewer asked other Reddit community members to imagine the feelings that the victim’s family must have had about Avery’s attorneys. “These guys would seem pretty villainous,” the viewer suggested. “[H]ave you ever followed one of those cases where the proverbial smoking gun evidence is disallowed based on a technicality pointed out by the defense attorney?,” the viewer asked. “It’s aggravating to watch someone work to set a seemingly guilty person free” (Reddit Users, 2016).

The comment inspired a rehearsal of the value of the defense attorney as a figure who provides a check on the state by requiring it, even in cases of clear guilt, to meet the burden of proof and operate in a transparent, fair manner. One wrote that Steven Avery:

had the right to a fair trial in a justice system free from corruption … even if he is guilty. Facilitating this noble pursuit is the function of a criminal defense attorney. Strang and Buting couldn’t be categorized as villainous even if Steve Avery had the undigested remains of [the victim] in his belly. Welcome to America. (Reddit Users, 2016)

Even if Avery were guilty, another wrote:

it is the duty of the attorney to defend his client with the goal of setting him/her free. Without this duty, without the presumption of innocence, without the right to a fair trial, we’d all be getting ‘Avery’d’ by the system. (Reddit Users, 2016)

“You have all these other rights in order to protect you from the government, who has an enormous wealth of resources compared to an individual person,” another viewer, who identified himself as a criminal defense attorney, wrote:

These rights belong to the guilty just as much as the innocently accused and we defense attorneys use them because if the police are allowed to bypass these rules, who’s to say they will not violate the constitutional rights of an innocent? (Reddit Users, 2016)

But the embrace of the procedural understanding of justice that is at the heart of legal liberalism has historically come at the expense of the humane treatment of the guilty. Murakawa (2014) has argued that the prison population boom in the United States since the 1970s was largely built by, rather than in spite of, liberal legislators who saw the rights afforded by due process as adequate protections of human dignity in the criminal justice system. The result was a dressing up, rather than a reining in, of the state’s use of violence to punish crime. With its power limited more by procedures than substantive values, the state could engage in nearly “limitless violence” against those convicted of crimes (Murakawa, 2014: 43). Just as the wrongful conviction movement privileges innocence over constitutional rights per se, this legal liberal defense of defense attorneys does nothing to limit the state’s violence against the legally and factually guilty. The celebration of legal liberalism that Making a Murderer stoked is, in the end, a diversion from the contemplation of what Gottschalk (2011: 317) has called the “wider question of what constitutes justice for the guilty.”

The discussion in this Reddit thread shows some viewers responding positively to an inverted form of the good-versus-evil binary that operates in lowbrow crimesploitation. Viewers relived an exchange in which Avery’s attorneys one-upped the prosecution. A courtroom disagreement about the prosecution’s plans to capitalize upon Brendan Dassey’s alleged confession led defense attorney Strang to rehearse, in open court, the presumption of innocence, saying:

All due respect to Counsel, the State is supposed to start every criminal case swimming upstream. And the strong current against which the State is supposed to be swimming is a presumption of innocence. That presumption of innocence has been eroded, if not eliminated, here by the specter of [the co-conspirator].

Remembering that moment, one commentator on Reddit wrote:

I was tickled to death when he said that. I felt like a kid watching Wrestle Mania VII where Sgt. Slaughter tried to pin Hogan with the Iraq flag and Hogan jumps up all bloody at the last second and takes him out with a leg drop. That’s pretty much how Strang handled [prosecutor Ken] Kratz on this exchange. (Reddit Users, 2016)

Another wrote, “These men were batman. Trying to fight the good fight in the face of a corrupt Gotham city. The heroes we need but don’t deserve” (Reddit Users, 2016). And a third wrote:

I don’t normally imagine a ‘defense attorney’ as being an Ayn Rand style Conservative, but I saw Strang and Buting as believers in freedom, and the truth no matter what. It really struck me that they saw government desire driving the case vs the facts and fought it as best they could. (Reddit Users, 2016)

“Law and order” sentiments run through these comments. If lowbrow crimesploitation often features law enforcement figures humiliating loathed criminals, the middlebrow Making a Murderer features defense attorneys vanquishing a loathed prosecutor.

Notable here is the distance between the construction and reception of the defense attorney in Making a Murderer and classical cinematic portrayals of defense attorneys in the courtroom dramas of the 1950s and 1960s. Stang and Buting may share some of the qualities of Gregory Peck’s Atticus Finch—an unadorned decency and commitment to upholding the values of due process—but the historical context in which Stang and Buting appear is significantly different. Depictions of heroic defense attorneys in the middle of the 20th century took place in a context of optimistic critique. In standing up for the wrongly accused, noble defense attorneys exposed racism and classism as an impediment to justice, but they offered hope that the law could be scrubbed clean of human bias and live up to its lofty ideals of equal justice (Rafter, 2006). In Making a Murderer, the courtroom is not a noble, albeit imperfect forum for doing justice—subject to failure, yet preferable to extralegal responses to crimes. It is instead a wrestling ring in which winners blot out their enemies, leaving them in an abject, humiliated position. A defendant’s rights are not substantive guarantees of humane treatment but stones lobbed at a corrupt Leviathan by heroic Davids. Buting and Stang become mirror images of the vigilante heroes of 1970s backlash films like Dirty Harry and Death Wish. These films celebrated white men who grew fed up with liberal governance and took the law into their own hands, executing criminals who had evaded justice. In the Reddit discussion we have presented here, Buting and Stang are legal strongmen who wield the law against the illiberal use of police power.

To criminal justice reformers, such an inversion might seem promising. The distrust of prosecutors and police agencies may increase public support for systemic reforms aimed at holding stage actors responsible for their actions. But when individuals, rather than structures and systems, are depicted as the source of injustice, the solution becomes case-specific and narrow. In response to the documentary, over 100,000 people signed a petition asking President Obama to pardon Steven Avery (a power he did not have, given the case’s prosecution in a state court) (Messer, 2016). Guided by a program that did not situate the Avery case in a larger context, audiences responded to the injustice they perceived by demanding executive clemency in a singular case, rather than proposing a broader, federal action aimed at curbing unbridled prosecutorial discretion or abusive interrogation techniques.

The sadistic qualities of punishment, meanwhile, are not condemned, as Making a Murderer simply redirects the desire to see bad people suffer. The proper response is not radical reassessment of the criminal justice system, but the desire to see bad actors like Ken Kratz humiliated and discarded. The series serves as a reminder that punitivism is a politically promiscuous, rather than fixed and reactionary, orientation toward the social world. When left-wing and libertarian critiques of state punishment rejoice at the downfall of punitive bad guys, they risk reinforcing the emotional foundations of the practices they aim to disrupt.

Concluding discussion

We have argued that a focus on the risk of convicting the innocent, the value of procedural due process, and the joy in degrading an enemy makes Making a Murderer unlikely to disrupt the punitive foundations of reactionary criminal justice in the United States. The common thread running through our critiques is that a fixation on individual culpability at the expense of structural analysis does little to subvert the status quo. When the focus of documentary inquiry is “Did he do it?” or “Who’s to blame for this outrageous government conduct?,” systemic inequality, prejudice against outsiders, racism, sexism, and other forms of structural violence are bracketed.

A decontextualized focus on a single case works to distance the viewer from a sense of being implicated in what they witness. In his exploration of documentary voice, media scholar Bill Nichols (2010: 69) argues that it gives viewers a sense that the film is addressing them as “socially situated viewers” and is speaking to them about the “common world” they and the documentarian share. The epistemic pleasures Making a Murderer offers in asking viewers to judge the case for themselves, and the outrage it solicits from them in its depiction of state actors, foster a sense of social and ethical distance from what they are watching. That distance releases viewers from responsibility for and to the common world they share with the documentarian.

Other documentaries address viewers as more than just inhabitants of a common world. Take, for example, critical geographer Story’s 2016 documentary film The Prison in Twelve Landscapes. Consisting of 12 vignettes, the film depicts neither prisons nor prisoners but communities and spaces outside of prison that are affected by mass incarceration. As Story (2017b; emphasis in original) puts it:

My hope is to make the prison a subject of reinvigorated debate, by suggesting that it operates not just as a building over there, but as a structure of power braided deeply into the relationships, economies and landscapes all around us. By upsetting expectations about where prisons are to be found, the film attempts to destabilize our own assumed relationship to them; to pose new questions about the work that prisons do in our society and whether that work is necessary or desirable.

The goal, she explains, is to “upend the commonsense understanding of prisons as indivisible from the problem of crime.” In its place, she aims to show that the prison is not so much a building as it is a “set of relationships” that have little to do with actual threats to safety and much to do with the political economy of late capitalism: the management of surplus labor in a post-industrial economy, the reconfiguration of property relations in gentrifying cities, the construction of personhood in ways that justify the contraction of the social safety net (Story, 2017a: 458, 459). Each vignette highlights something the prison does to people and places not surrounded by barbed wire, from private security officers patrolling downtown Detroit’s “opportunity zone” to a line of people waiting for a bus in midtown Manhattan that will take them upstate to visit their incarcerated loved ones.

Story’s film works against middlebrow documentaries of the prison, which she calls a “humanizing” prison cinema. A common trope of this cinema is the portrayal of a sympathetic prisoner whose structural disadvantages are noted, yet who only earns sympathy by being “repentant for his crimes, which belong to him as ‘bad choices’ rather than policing prerogatives or judicial dictates” (Story, 2017a: 457). Story instead interviews a woman who tells her harrowing account of spending four days in a jail cell for refusing to pay a fine for a missing cover on her garbage bin. Refusing to allow that story to stand alone, however, Story then takes her audience to the municipal court in Florissant, Missouri, a makeshift space in a middle school that forces those who arrive to pay or contest their fines to wait in a long line. As the camera pans down a line populated mostly by people of color, the film powerfully illustrates that the pains of mass punishment are not apprehended best in isolated stories of injustice but in the lines of poor people waiting to pay fines for petty offenses. They are best understood, in other words, as symptoms of what New York Times columnist Thomas Edsall (2014) calls “poverty capitalism,” in which “costs of essential government services are shifted to the poor,” often through steep fines for minor infractions like a misplaced trash lid or a broken taillight. With this context, the film does not invite a liberal reformist response. Instead, it invites its audience to see the prison as a violent expression of a post-industrial political and economic order.

Middlebrow depictions of crime and punishment like Making a Murderer claim a critical orientation. But it is only by exposing the deep structure of law’s violence and depicting that violence as cruel that “true life” stories of crime and punishment can actually achieve critical effects. Cultural productions about “real people” that subvert punitive common sense are those that invite audiences to move from the position of the exploiter—consuming the suffering of criminals and prisoners “over there”—to the position of the exploited—recognizing that they have been lulled, by dominant cultural logics, into a position of uncritical—or pseudocritical—consumption of pain. In this re-seeing, Story explains, “the lines between the ‘inside’ and the ‘outside’ become blurred.” The criminal justice system becomes “a set of social relations to which audience members also belong, participate in, and bear responsibility for” (Story 2017a: 459).