Supers and the Eighth Amendment

The Eighth Amendment to the United States Constitution reads as follows:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The last phrase, “cruel and unusual punishment,” has a long jurisprudence extending back even before ratification of the Constitution. The phrase appears in the English Bill of Rights which was a key legal step in effecting the Glorious Revolution, and the Eighth Amendment in particular has been a major cause of the gradual reduction in the physical severity of judicial punishments in American history. Today, no state inflicts direct corporal punishment other than capital punishment, whereas as recently as the twentieth century, states were sentencing convicts to hard labor.

All of this may be interesting in its own right, but we’re only talking about it because we want to know whether it would be “cruel and unusual” to, say, sentence an immortal being like Apocalypse to life without the possibility of parole (LWOP).

I. Punishing Supers

A. Life imprisonment.

Life imprisonment appears to have emerged in the nineteenth century as an alternative to the death penalty. It was formally recognized as a constitutional punishment by the Supreme Court in Schick v. Reed, 419 U.S. 256 (1974) (holding that reversing the Presidential pardon which reduced a death sentence to LWOP would be unconstitutional). For most people, a sentence of LWOP is really just a sentence of a few decades. The issue is not limited simply to LWOP either: courts can and do hand down consecutive life sentences. A prisoner convicted of multiple serious crimes which do not reach the level where LWOP is permitted may still be handed half a dozen life sentences with the possibility of parole. Get enough of them, and there’s no chance you’ll ever see the light of day.

But take Apocalypse as our first example. No one really knows how long he’s going to live, but it’s going to be one hell of a long time, seeing as he was apparently born sometime around 3000 BC. Even a very young man who gets LWOP will rarely see more than five decades in prison. Which is bad, but it’s an entirely different kettle of fish than seeing fifty decades or five hundred. So one question is whether sentencing someone who isn’t likely to die to LWOP or to consecutive life sentences constitutes cruel and unusual punishment.

It’s entirely possible that it might, especially given the ongoing debate about the practice of incarceration in general. There have been cases where judges have ordered the release of large numbers of convicts due to prison conditions, especially overcrowding. But that aside, it seems plausible that the Supreme Court might well rule that imprisoning someone for centuries, in addition to being completely impractical and phenomenally expensive, is crueler than simply killing them.  Thus, if capital punishment is unavailable as an alternative to an eternity in prison, whether because no capital crime was committed or because the jurisdiction does not allow capital punishment, then a very long but finite sentence–or at least the possibility of parole–may be constitutionally required.

B. Capital punishment

Of course, executing supers is not exactly a straightforward process a lot of the time. Some of them, like Captain America or Batman, are tough, yeah, but they can be killed through conventional means when it comes right down to it. Some may not be killable at all, like Doomsday (more on him later) or Dr. Manhattan. But what about someone like Wolverine or Superman? They can be killed, but it takes a bit of doing, and in Superman’s case it may not be possible without his cooperation, which seems unlikely. The most common methods of execution don’t seem to work: shooting, impaling, hanging, lethal injection, etc. Decapitation might work for Wolverine (Xavier Protocol Code 0-2-1 mentions this as a possibility) but no one’s tried it, and that just makes the point all the more clear: if we are to insist that capital punishment be administered as “humanely” as possible, i.e. with a minimum of pain and suffering, is it “cruel and unusual” to execute someone that requires a superhuman amount of punishment to kill, especially if we’re not even sure it would work?

Probably. There are serious questions about the constitutionality of lethal injection as being cruel and unusual, and many of the historical means, e.g. decapitation, hanging, breaking on the wheel, crucifixion, drawing and quartering, have all been abandoned if not outlawed under that doctrine. It’s getting to the point that the only execution methods available will just barely kill someone. If we can’t use them on people that they will kill, using them on people that they probably won’t kill would seem to be an obvious case of cruel and unusual punishment.

II. Super punishment

What is to be done then? If anything, this would serve to highlight the need for superheroes: tossing Doomsday into deep space was one of the only viable options in the face of such a threat. But this is, after all, simply an extension of the thesis that society and civilization may need persons who are willing and able to go beyond the bounds of society, in terms of power and/or action, to survive. Some threats simply cannot be dealt with by conventional means.

But even accepting that thesis for the purposes of argument, there are still legal issues to be confronted.

A. Extra-planar & extra-planetary imprisonment

During Marvel’s Civil War event a few years ago, Reed Richards and Tony Stark created a Negative Zone prison to house rebellious super-powered individuals pending their trials. It was viewed as the only viable solution to keeping such individuals incapacitated. Other stories have involved prisons in orbit or on the moon. Is it “cruel and unusual” to imprison people in such a place?

Probably not, so long as conditions in the prison itself were acceptable (and the Negative Zone prison basically seemed to be). The Federal Bureau of Prisons can put people basically wherever it wants, and the only reasons it cannot house inmates outside the territorial boundaries of the United States is practical rather than legal, i.e. it’s hard to get the real estate. Provided that transport to and from the place in question is reliable, there does not seem to be any particular legal reason such a prison could not operate. Indeed, the risks posed by such exotic forms of transportation could well be offset by the risks posed by attempting to house super-powered prisoners in traditional locations.

Simply tossing someone into space, like Superman did to Doomsday, is a little more problematic, because unless the sentence was intended to be permanent–in which case see the discussion in section I–any punishment which amounts to a life sentence is going to be unlawful.

B. Extra-judicial punishment.

Which may actually be the point. A lot of superhero-based justice is meted out entirely outside the legal system. Doomsday was not tried and convicted of anything: Superman simply got rid of him. Which is probably the best thing for everyone, as there are real jurisdictional and competence problems in trying an extra-terrestrial demigod in criminal court. The interplanetary law issues aside, trying any villain capable of single-handedly destroying an entire city seems a bit… presumptuous (and a good subject for a later post!). So there are really good reasons why we might be okay with superheroes simply getting the job done without asking permission first or making sure their legal “t’s” are crossed and “i’s” are dotted.

Which brings us to the doctrine of justiciability: in short, courts don’t like to hear cases in which it cannot possibly issue an enforceable judgment. The main issues which federal courts (and most state courts) view as nonjusticiable are advisory opinions, i.e. asking the court what it thinks it might do without asking it to do anything, collusive suits where the parties conspire to gin up a lawsuit in the absence of an actual controversy, unripeness/mootness, where it is either too early or too late for the court to do anything, and political questions, which are left up to the political branches to resolve.

Superhero-administered punishments raise one obvious justiciability issue: mootness. If Superman has already chucked Doomsday into space… what, exactly, is the Court supposed to do about it? It’s already done. Same for Batman killing the Joker or any other case where the supervillain has already been permanently punished. Aside from not really wanting to disturb the result, the Court couldn’t even if it wanted to. So even if the state actor question works out so that Superman etc. is a state actor, if the “punishment” is a done deal, any case will likely be dismissed as moot.

But the other issue is that United States courts do not initiate legal proceedings. They deal with the issues with which they are confronted. This is not merely limited to addressing the cases that get filed: relevant legal issues which are not raised and briefed by the parties are generally ignored by the courts. Judges sometimes make mention of these issues if they think the parties have missed something, but they will not hand down judgments based on them.

So who then is going to file a lawsuit–and against whom?–because a supervillain has been punished? The ACLU? I mean, they could probably come up with adequate standing without too much difficulty, but they already get enough bad press for representing clients that some people don’t like. Imagine the PR disaster if they decided to file suit against Superman for not following the niceties of the law while saving the world.

That’s just how the legal system works sometimes. When it is convenient for everyone involved to ignore the rules, the rules get ignored. This will be a recurring theme in any discussion of superhero stories, and actually gets a pretty good treatment in Frank Miller’s Batman stories.

III. Conclusion

Normal methods of judicial punishment might actually be unconstitutional when applied to super-powered individuals. But even if they were legal, there are such huge practical problems in dealing with them that it seems likely that the legal system would either not be given the chance to consider the issue or would even turn it down if offered. Society will probably need to decide for itself what it thinks about powerful vigilantes and villains like those in Metropolis and Gotham City. The legal system will probably be there to enforce that decision, but it does not necessarily provide any particular guidance in making it.

33 responses to “Supers and the Eighth Amendment

  1. In the appeal in the case of R vs Hamlet (Nov. 15th 2004
    the bench held that since life imprisonment is not “cruel or unusual”, it does not become so merely because the prisoner happens to have a long life.

    • Right, but the question becomes whether there’s a difference in kind between a merely long life and an unnaturally long life. I think there is.

  2. To what extent do you suppose the right of self-defense might enter into this? If Doomsday destroys the world, people would (presumably) be harmed in the process. So, Superman clearly has the right to lethal force to prevent it. So, if Superman kills Doomsday, he’s in the clear. The use of force was justified, so he hasn’t committed any crime. That much is probably clear.

    Wikipedia (no more a lawyer than I, but hey…) cites People v. McManus, 67 N.Y.2d 541, 496 N.E.2d 202, 505 N.Y.S.2d 43 (1986) as saying, “…current statutory defense reflects the common-law ‘right’ of an individual to repel a threat…” It’s a stretch, but it seems within the letter and spirit of the judgment to say that Superman would be justified in exiling Doomsday into space as a hasty way of eliminating the threat.

    (Alternatively, what might immigration law say about taking a dangerous illegal immigrant, say, out to sea and leaving him there? Out of danger, I mean, but without any way of returning to American shores. Doomsday, after all, did not come through customs, so throwing him into space could be “deportation,” after a fashion. Assuming an artificial, unreasoning force of destruction qualifies as a “person” to begin with, of course.)

    Imprisonment also seems within the letter and spirit. If the only way to relieve a threat to lives is perpetual incarceration, the government might not be allowed to do so due to the Eighth Amendment, as you point out, but individuals might, by this reasoning, provided it’s a “last resort.”

    On the entirely other hand, if you’re maintaining the outlawry idea, it’s a moot point. These villains wouldn’t be “persons,” after all, so their eternal disposal under a mountain of concrete might not pose any more legal an issue than, say, littering and/or zoning violations.

  3. As always, this was a thought provoking and well written piece regarding law as applied to supervillains.

    I must respectfully beg to differ on one point though. Under Section I. B. you address capital punishment and conclude that it would likely be barred under the 8th amendment when it takes a superhuman amount of punishment to kill them. But Baze v. Rees addresses what forms of capital punishment will be allowed. One key quote is “It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.” Baze v. Rees, 553 128 S.Ct. 1520, 1529 (2008). While this opinion primarily focuses on the specific method of lethal injection and the risk of unintentional harm, it does lay out some indications of the broad guidelines that should apply. For one, Baze quite clearly states that pain cannot be an intended punishment superadded to the punishment of death. Id at 1530. But it seems to imply that unavoidable pain brought about in carrying out the death sentence in a reasonable way in light of the circumstances is acceptable, and also highlights the fact that the Supreme Court has never invalidated any method of execution chosen by a state in the US, hinting that the bar to doing so would be relatively high when the method was chosen reasonably under the circumstances. Id.

    Moreover, as a matter of policy, it must be noted that supervillains present a far higher risk to the public should the fall into recidivism than does an average prisoner. Given this and that one of the stated purposes of the death penalty in many places is to make recidivism impossible, it is highly likely that both legislatures and courts would be more willing tolerate a reasonably necessary level of pain in the process and likely to permit the death sentence more freely in cases involving supervillains than in cases involving more traditional criminals.

    Finally, as a general note, the interpretation of the Constitution can be changed over time, and has been, to meet the needs of new eras as social reality changes. It is likely that when faced with an extraordinary event such as supervillains or even merely high levels of crime that cannot be dissuaded through mere imprisonment that the 8th amendment would be read differently to more broadly permit capital punishment or even less than lethal corporal punishment as appropriate.

    Therefore, I find it highly likely that the 8th amendment would not be a bar to supervillain executions even when that involves a superhuman level of punishment to achieve or even when it requires multiple attempts to determine what is necessary to carry out the death sentence. The 8th Amendment, as currently interpreted, would certainly require that it be carried out as humanely as possible under the circumstances, but that would not prevent it from being carried out even when the circumstances dictate the method to be used must be one that involves pain, so long as that pain is mitigated to the extent practical.

  4. The legal system could conceivably issue guidance. Supers could approach the legislature(s) to get a law passed granting legal standing to request the Attorney General(s) or the appropriate Justices or Courts to issue an Opinion to guide them. In ordinary real life, state actors with appropriate standing (I don’t know who they are) ask Attorneys General for “Opinions” which provide good faith guidance to state actors in the absence of legal precedent.
    This legislative granting of legal standing could be so tightly restricted as to not convert a non-state actor Super into a state actor for any other purpose or intent.
    We have win-win here. The supers would have guidance in doing their planet-saving jobs, and the nation would have the semblance of actually giving advice to the supers, which is ridiculous for the most part.

    Another solution to the guidance question, is that when extraordinary villains attack, such attacks could be defined as being acts of war for legal purposes, and all parties who defend the USA or the Earth or the Timeline, whatever, would be granted state authorization to use any and all means necessary to defend us.
    It would be a stupid idea to make the JSA or Dr. Manhattan or anyone just get sick of us and move to another solar system, when Starro or Galactus or Superboy Prime might show up out of the blue.

    Another possible compromise would be to grant war powers to associations of supers, including the Titans, Avengers, JLA, JSA, and the like. The only restriction that would seem legit would be that these associations would control the rogue elements (e.g. Hulk, Guy Gardner, Plastic Man) in their midsts. The firepower of the associations are generally as destructive as real life foreign powers who wage war.

  5. Most iterations of Superman have had access to the Phantom Zone, another extra-dimensional prison. The projector that accesses it is kept on Earth (and sometimes in Metropolis), which basically means that the entrance to a prison controlled only by Superman is on American soil. Doesn’t that give the US Governmnent an obligation to inspect the Phantom Zone?

    • The Phantom Zone is a little different than the Negative Zone. It’s not a physical place in the usual sense, and it doesn’t operate like a regular prison (e.g., there aren’t cells and guards and such).

      In any case, the entrance may be on US soil but the Phantom Zone itself is not. A court might decide that the projector is more like an airport or a boat dock. Just because an airport is on US soil doesn’t mean that the US has any particular responsibility toward any place one might fly to from that airport. In other words, there’s a difference between the destination and the means of travel.

      Even if the Phantom Zone were considered a prison, I don’t think the US would be in a position to do much about Superman sending people there. The people in the PZ can’t petition a court for relief; it’s unclear that any private parties would have standing on their behalf; and the government isn’t about to demand that Superman bring them back. Indeed, since the PZ seems to be outside the US’s jurisdiction, I think the best the government could do (if it even wanted to) would be to charge Superman with kidnapping. And good luck with that.

      • What does it mean to be on US soil? Couldn’t a court rule that the Phantom Zone is part of the US in the same way that US airspace is part of the US?

      • It’s hard to say whether or not something like the Phantom Zone would be on U.S soil. Things like airspace correspond to our normal understanding of dimensions and reality. The Phantom Zone might have areas that could physically overlap with the U.S (so to speak) but even a judge who wanted to accept that should need stronger proof. I suppose the U.S could always simply annex the Phantom Zone although you get into political problems there.
        Incidentally this would be just another area where modern science starts to outstrip the abilities of legal professionals to easily judge it. What should an American judge do if he or she has no idea whether the Large Hadron Collider could doom the planet?

      • David Johnston

        The United States could only claim the PZ or part of it if it could put troops into it to take it over.

        But one thing the courts could do is issue some kind of court order against Superman enjoining him from violating people’s civil rights, right? As long as he continued to more or less abide by the law, that would mean something to him. Nobody would bother if for someone like Doomsday, but if Superman got into a cranky mood and started PZing relatively minor criminals…

  6. I’m not sure I buy the ‘mootness’ discussion – after all, the courts routinely punish people whose actions cannot reversed. (Murders, rapists, etc…) From that, I don’t see why the courts cannot punish Superman for tossing Doomsday into space.

    • The question is not whether tossing Doomsday is a crime like murder or rape, the question is whether, if Superman is acting on behalf of the state, tossing Doomsday into space constitutes a violation of the Eighth Amendment. If Superman has already done it, whether or not it should have happened is probably moot, because there doesn’t seem to be anything anyone can do about it, possibly even Superman himself.

      • Although if Superman started to get into the habit of tossing people into space, then it might get into “capable of repetition, yet evading review” territory.

      • Which evades my point Ryan – the courts routinely mete out justice to individuals whose acts cannot be reversed, the nature of the irreversible act is irrelevant to the heart of the question.

      • the nature of the irreversible act is irrelevant to the heart of the question

        Not if we’re talking about a civil challenge to Superman’s actions, i.e. an attempt to prevent the execution of the sentence. That was the focus of my post. Injunctive relief sought for a situation which cannot be rectified will generally be dismissed by the courts as moot.

  7. This may not be the place of this site for debate but three questions occurred to me.
    The first is a hypothetical way of legislating superheroes/villains. Would it be constitutionally acceptable in the U.S to declare certain people to be ‘Human Weapons of Mass Destruction’ who are so potentially dangerous that they should be held under different laws than regular humans? Obviously you would run into problems of how you define these people and who defines them but would that be a constitutional way of settling the problem?
    The second is on the Joker primarily but also on treatment of supervillains in general. Given the number of times in the comics that incredibly dangerous individuals manage to escape from prisons or insane asylums is there any legal protections in existing law if someone decided to simply shoot the Joker and be done with it?
    The third is far more mundane. Would you prefer that we ask our questions in posts like these or should we wait until you post an article specifically for questions?

    • Depends on the question, really. If it’s concrete or simple enough to be answered in a few sentences, then asking in comments is fine. If it’s more complex, probably best to send us an email. You can find our addresses on the About page.

      As to your first question: I don’t think that would work, at least not easily. Equal protection and the presumption of innocence would be high barriers to such an approach.

      And your second question: no, I don’t think there’d be any legal protection for shooting The Joker in cold blood. However, practically speaking, there have been cases where society simply refuses to cooperate in the prosecution of a killer. The killing of Ken McElroy is one example. More tragically, lynch mobs are another example, and they show where unrestrained vigilantism and mob justice can go in the real world.

  8. What about “Salvation Run”, where the US government, through the Suicide Squad, rounded up the major DC supervillains and tossed them through a portal to an alien planet, where they were left to fend for themselves? I’m guessing that banishment would be deemed cruel and unusual.

  9. Why would Doomsday have the right to a fair trial and the protection of the Constitution in the first place? Doomsday is far more removed from a human being than a gorilla is, but the gorilla doesn’t get constitutional protection. We have shot apes to outer space for scientific reasons and as far as I know, these had not even done anything wrong.
    I think this issue applies to a lot of superheroes and villains. Why would an extraterrestrial get constitutional protection? Just because he can talk? Would a talking gorilla get constitutional protection? And do we withdraw protection from people born without the capability for speech?
    I think Doomsday is more an intelligent animal than a human being and the law should and would treat him as such.

    • You bring up an interesting point. First, most superbeings are clearly human, empowered perhaps but still clearly human.

      As for the ones that are aliens or mutated animals rather than empowered humans, I suspect that a court would almost have to look at it on a case by case basis. My suspicion is that as a matter of policy any being capable of showing itself to be sapient would be treated under the law as human.

      It is also worth noting that at least when talking about the bill of rights, most of them are written in the negative. In short, they are restrictions on the government rather than more broad gauruntees of support for a right. I suspect the courts would prevent Congress from passing a law restricting the free speech of Mr. Ed based on the first ammendment even if the same court would find him not to be a person and therefore incapable of being murdered.

    • The ability to speak is not a prerequisite to being considered human. You might say that the ability to communicate* could be required to prove the creature’s sentience but I don’t know of any legal standard so far.

      * Which could be written, sign language, Morse code or something else.

  10. Adding to my previous message: I would really like to see a discussion on the difficult topic of what makes a superbeing human or not. There has to be some case law on this in the context of black slaves at least but possibly also in the context of severely disabled people, coma patients, abortion etc. And I wouldn’t be surprised if cases involving animals had raised this question from the other end. Side note: In Europe in the middle ages there were even trials of animals for crimes.

    And what happens when a superbeing is found to be non-human (as some of them invariably will). What laws apply then? Are they animals? And if they are animals, would they qualify as endangered species because they are unique? How about legality of capital punishment from this angle? Let’s say the last individual of a protected species of gorilla goes on a killing spree in a mall and he is caught alive, would it even be legal to kill him even though he is endangered? I don’t think so. The same reasoning could be applied to unique superbeings. In fact, even imprisonment might be illegal in that case, or at least it would require an appropriate “habitat” rather than a “cell”.

  11. Why would an extraterrestrial be LESS entitled to constitutional protections than a furriner accused of terrorism? (Never mind that the last two administrations seem to have decided they can simply ignore ex parte Milligan.)

    As for nonhumans… I am not a lawyer. I do not even play one on TV. But it seems to me that a nonhuman which is capable of clearly expressing its desires and its understanding of what is happening (like the Dish of the Day) would have to be considered a “person”.

    And do we withdraw protection from people born without the capability for speech?

    Not in the least. I will refer to the wider field of non”superhero” science fiction. In LITTLE FUZZY, the defense tries to argues that because the Zarathustran “Fuzzies” do not talk or use fire, they are not sentient. The judge dismissed this, asserting that under Terran Federation law “talk-and-build-a-fire” was SUFFICIENT but not NECESSARY proof of sentience.

  12. Sentient aliens and other-dimensional beings are tacitly assumed to be “human” in most comicsverses; they can marry, share the legal parenthood of their children, and so on.

    (Mind you, most comicsverses don’t address their citizenship/nationality status, but that’s a different issue.)

    And aliens have been held legally responsible for murder, etc., which you wouldn’t do with a horse or an earthquake which had accidentally caused a death.

    So I’d say we’d have to extend the same assumption of personhood to their court status and sentencing.

  13. Just a point of interest, but the Disney film Sky High has one supervillain sentenced to a quadruple life sentence with no chance of parole until after his third life. Apparently, LWOP is cruel and unusual, but three consecutive life sentences isn’t. I don’t remember seeing the issue addressed in comics, but they might have a similar system worked out for the immortal or nigh-immortal.

  14. The point about the Phantom Zone made me think of something else:

    If a parallel universe has a ‘United States government’ whose history diverged from that of the ‘real’ US government at some point, is the alternative universe government a foreign power? What about US governments of ‘potential futures’ (ie we are their past, but they are not necessarily our future)?

  15. How about undead supervillains? If Solomon Grundy, a zombie, kills people in a rampage, it would be pointless to sentence him to life in prison if he’s already dead. If execution was sought for him, would the criminal justice system then be required to ally themselves with members of the religious community in order to put his soul to rest, or would they have to disintegrate him (with attendant cruelty issues if he can feel pain, or perhaps laws against mishandling corpses) and hope that that is sufficient to keep him from coming back?
    Zombies are notorious for recidivism– you might say it’s their raison d’etre. 😉

    • I think undead should likely be punished for flat time frames. I do not think it would be unreasonable for the prosecution to push for 25 years per murder for Grundy than life, since he can just keel over legally dead at any point.

      This would also go to the effect of where an undead is considered a person. A mindless infectious zombie is going to be treated more as a biohazard than a legal entity.

      • If a mindless zombie were put on trial his lawyer would obviously go with an insanity defense since a mindless zombie can’t adequately aid in it’s own defense nor would it understand the charges brougt against it.

      • Ryan Davidson

        A mindless zombie would probably be summarily executed. The dead have no rights.

    • One thing they can’t (or at least shouldn’t) do is give a death sentence; for those already dead that’s pretty much a get out of jail free card…

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