Resurrection Redux: Crimes, Punishment, and Debt

Probate law is just one aspect of the law affected by death and resurrection. Criminal law and contract law are also implicated.

I. Resurrection and Criminal Law

The Enron scandal was one of the biggest financial scams in history, before the 2008 crash anyway. While there are certainly interesting issues to be discussed in the execution and ultimate unraveling of that scheme, the real supervillainy shows up right at the very end. Kenneth Lay was convicted of ten counts of conspiracy and fraud on May 25, 2006, but before he had been sentenced, he died. The official cause of death was listed as heart failure, and following well-established law (see, e.g., United States v. Schuster, 778 F.2d 1132, (5th Cir. 1985)), the judge vacated the conviction and the indictment. This meant that his estate got to keep all of the money he “earned” while at Enron, leaving the government and the people he defrauded entirely without remedy.

But what if he was somehow resurrected or reanimated after the judgment was finalized?

This blogger is unaware of any cases where a conviction had been vacated or abated by reason of the defendant’s death before his appeals were exhausted but was then reinstated when the defendant turned out not to have been dead. But given the seriousness with which courts tend to treat criminal convictions, it seems likely that a court would not hesitate to reinstate a conviction for a defendant who somehow stopped being dead.

There’s another potential wrinkle in here: what if someone is convicted for murder and then the victim comes back to life?

Actually, this one is could be pretty straightforward: if the victim was actually dead at some point, i.e. he really was dead, he wasn’t simply missing or presumed dead, then the elements of the crime are still complete. The defendant did, in fact, kill the victim. Whether or not the victim stays dead is not actually an element of any homicide offense. So it would seem that this is ultimately irrelevant, which is perhaps a little counter-intuitive but does have the benefit of simplifying things a lot. As courts tend to like rulings which alleviate the burden on their dockets, this is not an unlikely outcome.

If, on the other hand, the victim turns out to have merely been critically injured and then lost or hidden, as has happened too many times in comic book history to count, things do change somewhat. If the defendant has been sentenced to death, that sentence would probably be commuted, as the Supreme Court is pretty consistent about requiring a dead body before the death penalty can be invoked.  See, e.g., Coker v. Georgia, 433 U.S. 534 (1977). But it is unlikely that the conviction would be overturned entirely. A murder conviction includes all the elements of attempted murder, and a manslaughter conviction would probably include all the elements of aggravated assault. Whether or not a court would order a new trial probably depends on the facts of the crime and the reappearance.

II. Resurrection and contract law

In addition to vacating convictions, death also has an effect on contractual liabilities. If someone incurs a lot of debt and then dies, their creditors can go after the estate but will not actually be able to go after the decedent’s heirs. So what happens when a character dies, his estate is probated, and then comes back? The ins and outs of resurrection and probate have already been discussed, but here it is probably the case that the outcome is going to be pretty dependent upon the facts.

The sneakiest, most villainous hypothetical would be a character that deliberately dies/has himself killed, knowing he will be resurrected or otherwise return to life, in an attempt to avoid his liabilities. Here, there is a good argument to be made that in the courts’ preference for substance over form, a person would not be permitted to deliberately avoid their liabilities this way. Fraud is fraud, regardless of how it is accomplished, and this sort of thumbing your nose at the legal system is likely to piss off the judge. A pissed off judge will probably find some way to nail you, even if it involves creating new law to do it.

But what about the hero who is actually killed and is brought back to life where neither are of his own doing? Clearly there is no intent to defraud, but that doesn’t mean that a court will simply hand out a free pass. Contracts are contracts and debts are debts, and though neither will follow one beyond the grave, coming back from the grave would seem to require leaving its protections behind as well. Here, it seems plausible that a judge would base the treatment of any outstanding debts on the way that the character goes about the rest of his assets. If he wants a clean break and does not attempt to reclaim any of his property that has gone through probate, a court could easily adopt the position that hey, he did die, and as he isn’t trying to “undo” the legal effects of his death beyond the mere fact of his resurrection, allowing the debts to remain discharged makes some sense.

If, on the other hand, the character attempts to return as closely as possible to the legal position he occupied before he died, equity would seem to demand that his creditors be given the opportunity to reassert their claims.  In particular, the equitable doctrine of unjust enrichment would require that, at a minimum, any assets subject to a claim by a creditor could not be reclaimed by the resurrected character without also reviving the debt (no pun intended).

III. Conclusion

So it turns out that these are both examples of how the law might actually be more resilient than it might otherwise appear. Though resurrection does pose interesting issues for judges in both criminal and contract law, it would seem that the legal system already possesses the necessary doctrines and flexibility to handle them.

Commentary from James Daily

I generally agree with my co-author here.  I think there is one interesting edge case, however, and that is the treatment of characters who routinely come back from the dead as a matter of course.  For example, some characters have such powerful regeneration abilities that they will come back from the dead on their own (e.g., Doomsday, Claire Bennet, Lobo).  If someone ‘kills’ such a character only to have them self-resurrect in the expected fashion, has a murder actually been committed?  Note that at the very least attempted murder has been committed as has aggravated battery, so the defendant would still be guilty of a serious crime, but not murder, which would foreclose the death penalty, at least in the US per Coker v. Georgia.

I should probably first explain why attempted murder is still on the table, even if it were factually impossible to permanently kill the victim (e.g. the weapon in question could not actually have killed the victim or the victim would necessarily self-resurrect).  Factual impossibility is generally not a defense to an attempted crime; it suffices that the defendant intended to kill the victim or to cause grievous bodily harm.  It seems likely that any damage sufficient to temporarily kill a self-resurrecting character would fit the bill.

Regarding the primary question: one approach would be to analogize to cases in which the victim was briefly clinically dead but was later resuscitated and then recovered.  Unfortunately, I could only find cases in which the victim was resuscitated but then steadily got worse and ultimately died.  If any knows of a case on point, please let me know.

Instead we can turn to the legal definition of death.  This varies from state to state, but a majority hold that brain death is synonymous with legal death.  In 1975 the American Bar Association stated: “For all legal purposes, a human body with irreversible total cessation of brain function, according to usual and customary standards of medical practice, shall be considered dead.”  61 J. Am. Bar Assoc. 464 (1975).  This is not exactly the definition used in many states, but it’s close enough for our purposes.

In the case of a temporarily dead self-resurrecting character the damage done to the brain is demonstrably reversible.  On the other hand, it may still be irreversible according to the usual and customary standards of medical practice.  A criminal defense attorney would certainly try to argue that a self-resurrecting character cannot be murdered, but I think the courts would be unpersuaded.  The public policy against murder is very strong, perhaps the strongest there is, and the courts would almost certainly adjust their definition of death to encompass the temporary deaths of self-resurrecting characters.

31 responses to “Resurrection Redux: Crimes, Punishment, and Debt

  1. Re: homicide, at common law it only applied when you killed another human being– an element that arguably isn’t met when the person killed is capable of being regenerated/resurrected.

    • That would assume that a regular human such as Green Arrow never gets resurrected. In comic book land, this clearly can happen with anybody, not just people with relevant special powers.

  2. In our world, resurrection is not common, so that the different areas of law have built in the presumption of permanence of the dead person. On the other hand, we DO have the rather common, by comparison, incidence of the presumed dead making their presence known. These include soldiers missing in action, or persons lost at sea, persons lost in the confusion of acts of war and mayhem, where the missing persons reappear to the chagrin of all, especially their remarried spouses.
    Now I wonder: what does the law do in regard to these people? When these people reappear and try to reestablish themselves in their previous social roles, there will be problems.
    This is, no doubt, a very minor area of legal practice, but our Multiverse would develop a considerable body of case law, and would probably have a considerable history of common law developed over centuries , of mutants and superpowered resident aliens.
    A related problem will arise in that we presume that people will in fact die. Some metahumans just DON’T DIE, period, such as Ra’s al Ghul and that character in Gaiman’s Sandman series.

  3. I love this blog. Is there a place to submit legal questions or should we just post them in the comments? It’d be related to comic books of course.

    • Thanks! Just leave ’em in the comments. If it’s a big enough question, it may even spark a new post.

    • We welcome ideas for new posts. Just put them in a comment; we read all of them.

      However, be aware of our disclaimer, which can be found on the About Page:

      On this blog we discuss fictional scenarios; nothing on this blog is legal advice. No attorney-client relationship is created by reading the blog or writing comments, even if the authors write back. The authors speak only for themselves, and nothing on this blog is to be considered the opinions or views of the authors’ employers.

  4. If a supervillain dies, regardless of his intent, aren’t his debts in fact and in law *extinguished*? On what basis, then, could a court reinstate them? In other words, “where” did the debt go when the supervillain died? Perhaps reinstatement would be an equitable as opposed to a legal remedy.

    • Oh, we’d definitely be talking equity here. But as law and equity were effectively merged with the introduction of the Federal Rules of Civil Procedure, I’m not sure it’s worth belaboring that distinction anymore. The theory I’m operating under here is that judges are going to do their best to ensure a just outcome, and if that means making new law to fit the equities of the situation, that’s what they’ll do.

    • The court could reinstate his debts on the grounds that seeing as how he’s still alive obviously he was never really dead in the first place. With superpowers in particular it can be difficult to tell the difference so occasionally the courts will have to go back and reverse the mistaken finding of death.

      However, if the character can make a credible argument that rather than resurrected it is a new person, such as for example a case where the character was regrown from a cell sample , then he could probably slide unless the court has access to some expert witness who confirm the existence and identity of the soul to their satisfaction.

  5. So if, when someone attempts to shoot an invulnerable man, they are still liable for attempted murder, does the invulnerable man have grounds for a lawsuit? Is taunting wealthy armed men a valid career choice if you’re invulnerable?

    • I think the shooter would be liable in tort for assault (if the attack failed completely) and battery (if it at least landed a blow, however slight). If the victim actually died but then came back to life I think there’d be a good cause for intentional infliction of emotional distress as well, since death seems pretty distressing for most people.

      Taunting wealthy armed men might indeed be a viable career choice, although one would have to be very careful not to run afoul of the law oneself. Slander, for example, could be an issue, as could stalking charges. Probably easier money to be made renting yourself out as ‘the most dangerous game’ to psychopathic billionaires.

    • Actually, I think that the potential for that as a career move is pretty limited.

      Damages for assault are proportional to, well, damages, so a truly invulnerable person who knows that he is invulnerable will neither suffer much injury nor ever be in reasonable fear of imminent bodily harm. He’ll never get more than nominal damages.

    • It depends on intent. If the shooter is fully aware that the target is invulnerable and had no intention or reasonable expectation of doing them permanent harm, much as with shooting a regular Joe with a Nerf gun, it would be some lesser offense if a crime at all. If the shooter shot not knowing that the bullets would bounce, the usual law would apply.

  6. This isn’t strictly relevant, but what about shooting someone like Superman in the head? It’d kill a normal person, but nobody would think that it would hurt superman. Just assault in that case?

    And this would make criminals sentenced to multiple life sentences a bit different!

    • I think that would be criminal battery rather than assault. It’s still the use of force against another resulting in a harmful or offensive contact (in Superman’s case more offensive than harmful). There would probably be a whole host of other criminal charges as well (e.g., reckless endangerment (to bystanders), unlawful use of a weapon).

  7. They kind of covered multiple death sentences in Schlock Mercenary where a form of “quantum cloning” resulted in, among other things, a convicted fugitive being executed for both counts at separate times

    As for the case of killing someone who can come back to life, I’d say that there could be some clemency involved for cases where you know they can come back to life, particularly when it comes to things like self defense and using deadly force to defend others. Use of deadly force is still force, but might not be considered deadly when used against someone who you know will live through the process. Although that leads to a new can of worms as to whether a police officer who insists on shooting Deadpool in the leg knowing he’ll get up again is guilty of a form of negligence…

  8. What about the case where the old body remains dead, you just acquire a new body (cloning, mind transfer, …)?

    Also, what about things like property rights? If you’re dead and come back to life, but your estate has already gone through probate, what happens to your possessions? This is related to the contracts issue, but hardly equivalent.

  9. John Varley addresses some of these issues in a wonderful short story “The Phantom of Kansas.” It takes place in a world where your life insurance policy is a prepaid service that, when you die, grows a clone and plays your most recent memory recording into it. As the narrator comments, murder becomes a much less attractive revenge when six months later your victim is on the street and successfully sues the crap out of you for alienation of personality, ie, whatever experiences were lost between your last recording and the murder. To say more would be to spoil important parts of the plot; it’s well worth a read.

  10. The rule against perpetuities would fall with the existence of an immortal human. The rule allows one to use any “life” as the measure for vesting. Thus, a grant like “I grant Middlemarch to A and his heirs but if they ever drink alcohol, then to the B and her heirs, until 21 years have passed after the death of Mr. Superhero” is allowed, as it would vest during the (indefinite) life of the superhero.

    The interesting thing is whether the measuring life would restart if the superhero dies and is resurrected. What if Mr. Superhero dies, is resurrected the next day, 21 years pass and A drinks alcohol. Can B claim Middlemarch on the basis of the deed?

  11. I was wondering how this works in the case of a superhero like the Doctor (of Doctor Who fame), who, upon dying, will regenerate into a new Doctor. So it’s still the same Time Lord, but a different person? How does this work legally? More generally, what about reincarnation? Does it matter if the experiences of previous lives is retained?

    • Doctor Who also presents the complications of both being an alien and frequent time travel. Just the statute of limitations issue alone …

  12. Nice post. But one thing bothered me in particular.

    “The public policy against murder is very strong, perhaps the strongest there is, and the courts would almost certainly adjust their definition of death to encompass the temporary deaths of self-resurrecting characters.”

    This begs the question. The public policy against murder would only be furthered by encompassing temporary killings if, in fact, these temporary killings were indeed “murders”. If they’re not, the public policy against murder is not implicated.

    I can easily see a judge reasoning that the policy against murder is to prevent all of the personal and social damage of permanent deaths, so that the policy would not be furthered by punishing someone for “killing” the victim only to have the victim spring back to life feeling like they just took a nice nap.

    • But what if the assailant did not know that the victim was immortal? Or what about characters that can recover from some kinds of fatal injuries but not others? Or characters that have a finite number of ‘extra lives?’ No, I think the policy against murder is still implicated, and a court would likely decide that a killing, even a temporary one, is still murder. Otherwise you get into a lot of hairsplitting questions about knowledge and intent.

      Another way to look at it is by analogy to the felony murder doctrine. If someone can be held criminally liable for murder (even to the point of capital punishment) without killing someone, then it does not seem such a great stretch to hold the actual assailant liable for murder even if the victim doesn’t stay dead.

  13. More practically, would a creditor have standing to intervene legally to keep a dying Ken Lay on life support citing irreversible damages if he were allowed to expire?

  14. I think another key contractual issue would be recovery of life insurance proceeds from the death of a resurrected superhero. The death of the superhero would be a condition precedent to recovery of the proceeds, but most life insurance contracts do not contain provisions requiring that the decedent remain dead.

    It seems that our legal application is primarily based on equity. However, interpretation of insurance contracts are questions of law. In addition, ambiguities in the contract are interpreted in favor of the insured (in Texas at least). Therefore, a resurrected superhero (or supervillian) could presumably die, recover life insurance proceeds, and then enjoy proceeds upon resurrection.

  15. I think a whole post could be done on the issue of cloning as it is portrayed in comic books and movies. Take for example the protagonists in The Island. When the original people that they are cloned from die, can the clones legally claim ownership of their property? Recall that the movie ended with Lincoln Six Echo taking over Tom Lincoln’s identity. If Lincoln Six Echo were proven to be a clone of Tom Lincoln and not the real Tom Lincoln could he be charged with fraud? And would Tom Lincoln’s property become Lincoln Six Echo’s anyway as Tom Lincoln died with no wife or children? Does the fact that Lincoln Six Echo was directly responsible for Tom Lincoln’s death complicate things? (Lincoln Six Echo convinced the hunters that he was Tom Lincoln so they killed the real Tom Lincoln instead.)

    The movie The Sixth Day introduces other questions as the villains in the movie were constantly resurrecting themselves by transferring their minds to cloned bodies. In the movie it was claimed that clones could not own property so the villains had to keep their status a secret at all costs. In real life, a clone would be considered either one’s offspring or one’s twin and could, presumably, inherit your estate when you die.

    In both cases, there would be the question of, first of all, proving that someone is a clone and not the original person and then, after the fact, creating a valid birth certificate for the person who was born in a laboratory and not a hospital. In real life, a person is cloned by extracting DNA from the nucleus of, presumably, any cell in his or her body and then using that DNA to fertilize a human ovum. Of course, the ovum would, in general, have different mitochondrial DNA, assuming the ovum donor wasn’t the same person as the DNA donor or his or her mother or somebody else with identical mitochondrial DNA. It would then be possible to prove that someone is a clone then in most cases. Indeed, in real life the clone would be a child and not a full grown adult so it should be obvious that the clone is not the original person.

    What other legal ramifications might there be to cloning? Some examples of clones in the comics would be Superboy of the Teen Titans and Ben Reilly, the clone of Peter Parker aka Spiderman.

  16. Is there any reason why a judgment couldn’t have something to the effect of “In the event that this person comes back to life, this acquittal shall be considered void and a new judgment will be rendered”?

  17. I’ve always thought that it was precisely the irrevocability of death that constitutes death such that anyone “coming back to life” would prove they were never truly dead in the first place. Basically death is not a property of a body, a process or even an event. Death is the absence of the process that we call life and the permenant absence of that process not a mere temporary interuption in its normal flow.

    In real life there are instances where someone has no vital signs, but recovers (usually involving extended exposure to cold) in minutes or hours, this is treated as death only in a loose sense (ie for the sake of a good headline or as a lead-in to the story). Even if it were established their brains completely ceased function I don’t think we would treat that as death. As far as I can see we do not treat it as death precisely because they recovered.

    A more super heroic illustration suggests itself. Imagine a being with the power to freeze someone or something in time (ie all internal motion and change stops), if a person so frozen never unfreezes then they are dead, they have no vital functions, they never experience anything new and never do anything else but sit unbreathing umoving for eternity, an unrotting corpse. If the person is unfreezed then for them it is as though nothing happened (or as if they teleported to some new location depending on how the surroundings have changed) there was no interuption in the function of any of their vital processes, the rest of the universe just jumped discontinously into the future, but after all time is relative in this universe. It may hurt to be frozen and unfrozen in time but so long as you are unfrozen the freezing process failed to kill you (its consquences may).

    Of course some of this comes down to the old debate, do matter transporters that break a living being down to its component atoms and reconstruct them elsewhere transport or kill and merely replicate living beings. So this is also related to the question of identity across time, what makes me the same me as I was 5 minutes or 5 years ago.

  18. As far as punishment for killing someone who then comes back to life goes, I prefer the solution of Lord Vetinari in Terry Pratchett’s Discworld series. If the victim is only briefly dead, then the murderer will only be briefly hanged. Five or ten minutes usually does the trick. If the murderer isn’t able to come back to life themselves then clearly they just aren’t prepared to make the same effort their victim had, and its their own fault.

  19. What if a criminal got the death sentence, the sentence got carried and doctors confirmed it was effective, but then the criminal “wakes up” and walks out of the morgue?

    • In fact, the U.S. Supreme Court considered a very similar issue in Francis v. Resweber, 329 U.S. 459 (1947), a case involving a botched execution by electric chair. The Court held that it did not violate double jeopardy or constitute cruel or unusual punishment to reattempt the execution. If the prisoner is immortal, then repeated attempts would be futile, which would probably violate the 8th Amendment. But a couple of tries are probably constitutionally permissible.

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