(Update: we have discovered a case on point for one of the issues raised in the post. Check out section II of the post for more.)
Torchwood: Miracle Day is the fourth “season” of the British sci-fi series Torchwood, itself a 2006 spin-off of the ever-popular Doctor Who revival. The basic premise is that, all of a sudden, people stop dying. This is not as much fun as it sounds.
Interestingly enough for the purposes of Law and the Multiverse, the series so far has more than its fair share of legal issues. So we’re going to take a look at each episode as it comes out. We’ll leave reviews of the episodes for others, as always, but hope to be your source for legal analysis for the series. Spoilers will follow. You have been warned.
I. The Execution
The episode begins with the attempted execution of Oswald Danes (Bill Pullman, oddly enough), a convicted rapist and pedophile, by lethal injection. The execution… does not go as planned, as this is the day that people all over the world stop dying.
But another thing didn’t go as planned: Danes struggles and fights during the execution. This is not how it happens. The lethal injection protocol currently in use in the United States is actually a multi-step process, the first of which is the injection of about 5g of sodium thiopental. The drug is a fast-acting, powerful barbituate, and a clinical dose is approximately 3-5mg/kg of body weight, i.e. about 0.3-0.5g/kg, this is ten times the normal clinical dose. Many states then follow up with a powerful anti-seizure and narcotic combo, just to make sure. Needless to say, an injection of this magnitude will put your lights out right quick. No struggling, no fighting, nothing, just out. Like forever.
The reason is actually referenced later in the episode: The Eighth Amendment prohibition of cruel and unusual punishment. Long story short, the Supreme Court has basically outlawed any method of execution which causes much in the way of discomfort. Whether or not this makes any sense–since when is execution supposed to be painless anyway?–is beside the point: the infliction of physical pain is deliberately avoided. So an execution scene like the one depicted in the episode would indicate something gone severely wrong.
Of course, something did go pretty wrong, so it’s not entirely clear what the deal is there. All they really gave him is drugs with a side effect of massive respiratory repression. They’re narcotics, for crying out loud. He should feel just fine, once his heart gets going again.
So far, the show is 0 for 1 in getting the law right. That is not how we execute people anymore. Still, the creators are Brits, so maybe we can forgive them that one.
II. The Aftermath
But what then? The show does pick up on the fact that if we execute someone and he somehow doesn’t die, we’ve got a problem on our hands, legal and otherwise. Here, they completely botch it. Danes actually quotes the Fifth Amendment. He says “nor shall any person be subject for the same offense twice.” That’s a fragment, so even standing on its own it doesn’t necessarily mean anything. But it’s actually a misquotation. The relevant line reads “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” That would seem to be more to the point, as it includes the thing being prohibited as well as the persons to whom the prohibition applies. In any case, Danes argues that this means that, his execution having been carried out and he having “died,” the Fifth and Eighth Amendments act to make his continued incarceration unconstitutional. He threatens to sue the state and the governor, in his personal capacity (we’ll get to that one in a minute), for violating his constitutional rights, saying that every minute he’s kept in jail is another million in damages (we’ll get to that in a minute too).
This is, to put it bluntly, absolute rubbish. Here’s the thing: the Fifth Amendment says that a person shall not be put in jeopardy more than once for the same offense. But Danes has already been convicted. His life is not in jeopardy, it is forfeit. “Jeopardy,” as the courts would interpret it, means “danger” or “risk.” The way this is used in the legal system basically means that a person cannot be tried for the same offense more than once if a jury enters a not-guilty verdict. That’s the danger: that one might be convicted, not that a sentence might be carried out. While Danes is certainly correct that the Eighth Amendment probably prohibits further attempts to execute him, as such would doubtless cause him great pain with no real odds of killing him, the fact that he survived one execution does not, in fact, change the fact that he is still a convict. And no court is going to uphold the proposition that the fact that the sentence was carried out means that, in the face of his continued survival, continuing to hold him is illegal. No, Danes may not be on death row anymore–no one would be, really–but that doesn’t mean he couldn’t be kept in solitary. Of course, the fact that he isn’t going to die raises its own issues, which we’ve already talked about.
Update: 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. Here, reattempting the execution would be futile, but Danes could simply be held until people started dying again, or his sentence could be commuted to life in prison.
That’s 0 for 2. Not looking good.
III. Suing State Officials
Then there’s the issue of whether or not Danes can sue the governor directly. Clearly he can sue the state under 42 U.S.C. § 1983 to test the theory of whether or not his continued incarceration constitutes a violation of his constitutional rights (again: not likely). But can he sue the governor directly?
Yes. Sort of. In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court ruled that the Attorney General of Minnesota–and by extension any state official–could be sued in his personal capacity for alleged violations of the Due Process Clause of the Fourteenth Amendment. The case essentially created a cause of action directly against state officials, again, in their personal capacity, whenever a potential plaintiff believes that his rights are being violated. The fiction is that 1) the official cannot be acting on behalf of the state if his actions violate the Constitution, but 2) he’s acting under color of law, so we’ll call him a state actor for constitutional purposes. So he gets the downside of state actor status without the upside of sovereign immunity. Kind of sucks.
But Ex parte Young only created a cause of action for injunctive relief, i.e. an order prohibiting the official from engaging in a particular course of conduct. Money damages aren’t on the table. At least, not until Hafer v. Melo, 502 U.S. 21 (1991) where the Court held that a state official could be sued for money damages in his personal capacity under § 1983… but if you bring that suit, you can’t also sue the state, as Kentucky v. Graham 473 U.S. 159 (1985) is still good law.
The other major related case is Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), where the Supreme Court held that federal officers can be sued for monetary damages when they violate someone’s constitutional rights. But that only applies to federal officers.
Two things here. First, it is exceptionally unlikely that the governor would be held liable–see section II, supra–and even if he were, damages would be far, far less than implied by the show. Millions of dollars? Not likely. The § 1983 action could be worth something, but damages in the five- to low-six-figure range seem far more likely than Danes’ exaggerated claims. By comparison–a comparison the court would almost certainly make–the federal statute providing compensation for wrongful imprisonment in federal prison is 28 U.S.C § 2513, and provides for a maximum of $50,000/year in damages. So if you’re behind bars for twenty years, you get a maximum of $1 million.
Second, Danes threatens a suit for wrongful imprisonment. This would have to come under state law, as wrongful imprisonment is a separate action from violation of one’s constitutional rights. Unfortunately, Kentucky, the state where Danes was imprisoned, doesn’t have such a statute, so the independent tort of wrongful imprisonment just won’t lie, and if brought in the absence of such a statute, the governor would be immune anyway.
So the show is right that the governor can be sued in his personal capacity, but wrong about the damages, and wrong that he can be sued for a tort independent of the constitutional claims. That’s a subtle piece of business, so we’ll split the difference and call it 0-2-1.
Then, at the end of the episode, Rex Matheson subjects the whole team to extraordinary rendition. Extraordinary rendition is, essentially, the extra-judicial abduction and transfer of a person across international boundaries. It is legal? That’s one of the hot-button legal questions of the last decade. Can Matheson do it? Almost certainly, particularly as the British government is likely to cooperate. We’ll have to see where that leads though, as the episode basically ends there.
However, Matheson says that his authority comes from “the 456 Amendments to US Code 3184.” Umm… no. “The 456 Amendments” are almost certainly a reference to Children of Earth (and what a particularly chilling little miniseries that was), and it’s plausible that the could have been a statute with an official short name along those lines. but “US Code 3184” doesn’t actually mean anything. It’s missing the first part of the citation, the title number. It could be Title 50, War and National Defense, but that section number would put it several hundred sections (they don’t have to be consecutive, but still) after the end of the last chapter. If it were Title 10, Armed Forces, that’d put it in Subtitle B, relating to the Army, right between parts I and II. Basically, they just made something up which sounded semi-official and left it at that. Oh well.
Still, that bit about the citations is pretty well within artistic license as far as law is concerned. It’s more important that writers and directors get the substance of the law over its arcane forms, so we’ll let that one slide. They’re right about the renditions, so the score is 1-2-1. Not horrible, all things considered.
Thus far, the show isn’t faring very well as far as its handling of legal issues. But it’s looking to be pretty good otherwise. Check back next Monday for analysis of the next episode!