All-Star Superman is the non-canonical, bi-monthly limited Superman series written by Grant Morrison and drawn by Frank Quitely which ran from January 2006 to October 2008. It’s the second title published by DC’s All-Star imprint, designed to let authors take a new run at old heroes by freeing them from the constrictions of continuity, both retrospective and prospective, similar to the Marvel Ultimate series. While All-Star Batman and Robin the Boy Wonder was rather poorly received, All-Star Superman is generally regarded as a successful and interesting take on Superman. One can say without offering much of a spoiler that the whole premise of the series is that Superman learns he is terminally ill and sets about setting his affairs in order before his impending death, setting the scene for a rather more poignant and thoughtful set of stories than one would normally expect from the Man of Steel. It also presents a pair of related legal issues which we’ll consider here: is Lex Luthor criminally liable for Superman’s death, and even if he were, how would one go about prosecuting something like that? This time we’re going to look at the first issue, saving the second for another post.
I. The Setup
In the first issue, a team of scientists with P.R.O.J.E.C.T.—this world’s instantiation of Project Cadmus—are in the sun-diving research spaceship The Ray Bradbury inside the sun’s atmosphere when things start to go wrong. It turns out that Lex Luthor has replaced one of the scientists with… something… which describes itself as “a genetically modified suicide bomb in human form.” Spikes of something glowing green—kryptonite?—protrude from its back, and the magnetic containment of the Bradbury starts to fail. Superman shows up, takes the saboteur outside where it blows up, and then extends his invulnerable “bioelectric field” to include the Bradbury, pulling it to safety.
The problem is that, according to Dr. Quintum, “[Superman's] trip to the sun exposed [him] to critical levels of stellar radiation, more raw energy than [his] cells are able to process efficiently. . . . Our own scan of your cells shows them super-saturated with solar radiation. Bursting from within. . . . Luthor has used us to kill you.”
In essence, Superman has a few months (or so) to live, and Luthor is implicated in this turn of events.
II. Criminal Liability for Luthor
At the end of the first issue, Luthor is arrested by someone claiming to have a warrant for his arrest for “attempted murder” and “crimes against humanity.” We’ll get to the latter in a later post, but is Luthor guilty of attempted murder here? Is he guilty of anything related to Superman’s condition?
A. The Year and a Day Rule
This is actually a fairly interesting question, because in the immediate aftermath of the sun incident, Superman is shown opposing a force of 200 quintillion tons. For one thing, we’re definitely back to Silver Age concepts here, as that’s about thirty-odd times the mass of the Earth. But more than that, even though he is now technically dying, he is, in every other respect, even more powerful than he was before. He certainly isn’t dead, and the only way to tell that he’s dying is with a microscope. This implicates the year and a day rule, the old common law doctrine that death could not be attributed to any acts or omissions which occured at least a year and a day in the past. In effect, this is putting a temporal limit on the causation element, i.e. the chain of causation is broken if enough time passes between the actus reus and the resulting death. We don’t know how long it takes Superman to die, but the comic ran for the better part of two years, so the rule is at least potentially in play.
Practically speaking though, this is not likely to defeat criminal liability for Luthor. Many states have abolished the rule entirely, recognizing that advances in medical technology 1) allow us much better understanding of medical causation than was possible in the past, and 2) the existence of life support systems and the possibility that a victim of violence will be on them might force a grieving family to face the prospect of precluding criminal prosecution of the perpetrator by keeping their loved one on life support. That’s clearly not a good result. In Rogers v. Tennessee, 532 U.S. 451 (2001), the Supreme Court held that not only was the abolition of the year and a day rule constitutional, but it was constitutional to do it retroactively. So even if Superman did live for more than a year, a court could impose criminal liability anyway.
C. Attempted Murder
Next, there are some potential causation issues here. We’ve previously talked about the difficulty of charging someone with the attempted murder of an invincible being, or at least one which should not be hurt by the act being committed. In other stories, Superman not only appears to have absolutely no problem sundiving, but in certain cases is actually helped by it. So there’s a real question about whether Luthor could realistically have believed that what he was doing was going to hurt Superman. The question turns in part on exactly what was going on with that human bomb, i.e. were those spikes kryptonite or not?
But there’s another problem here: Luthor didn’t actually do anything to Superman.
That’s right, Luthor took no action which directly caused any injury to Superman. What he did was sabotage a scientific mission and then counted on the fact that Superman would come to the rescue. Deliberate acts of others generally break the chain of causation. But causation isn’t actually an element of attempted murder (the only elements are taking a deliberate action with the specific intent of killing someone). So because Luthor deliberately orchestrated events to come out a certain way, and they did, he probably is guilty of attempted murder.
Still, attempted murder isn’t probably going to be what anyone wants to charge him with, particularly if, as is implied in the story, people want Luthor to be executed. The dominant interpretation of Coker v. Georgia is that capital punishment is unconstitutional for any offense which does not result in the death of another person. If the state wants to execute Luthor, he’s going to need to be charged with murder, which is still a possibility once Superman dies.
First of all, we need to establish that what Luthor did here actually counts as murder at all. Remember, Superman doesn’t actually die in the incident, and one might even argue that he hasn’t actually been injured. A lethal dose of awesomeness isn’t usually something most courts recognize as a murder weapon. We might argue that he’s essentially been exposed to a disease, but imposing criminal liability for that is actually quite controversial, both here and abroad. “Non-aggressive death” is actually an active area of scholarship, as the legal system tries to get its head around the fact that there are more ways of causing someone’s death than violently killing them. For example, criminal liability for transmission of HIV is a hotly contested area. Proponents argue that deliberate or even negligent infection is essentially no different than killing someone with a gun and should be punished accordingly. Opponents argue that this runs the risk of further stigmatizing and encouraging discrimination against those with HIV. With HIV in particular there are some obvious political alignments in play, but more broadly, one can, in many jurisdictions, be held liable for exposing someone to a disease. The law in this area is actively developing.
Another thing is that this almost seems like a sort of legal Gettier problem, in that Luthor intended to kill Superman, took actions he thought would bring that about, and Superman does wind up dying from those actions, but it’s far from clear that Luthor had any idea how or even if this would work. Gettier problems are philosophical exercises in epistemology, purported to demonstrate that the traditional definition of “knowledge,” i.e. “justified true belief,” is insufficient, because there are examples of a belief that may be both justified and true but which most people would still not count as knowledge. Here, we’ve got a situation which may be sort of like trying to kill someone by dropping a piano on their head only to have them see it, step out of the way, and get hit by a bus. Yes, you tried to kill them, and yes, they did die, but there’s still something funny going on, and there’s a good argument to be made that this breaks the chain of causation.
Still, rather than muck about with trying to decide whether or not Superman’s intentional actions break causation or whether Luthor’s actions caused Superman’s death, there’s something else we can go with: felony murder. Luthor’s actions are obviously a felony. He’s sabotaged expensive scientific equipment and put the lives of several people in mortal danger, which certainly counts as reckless endangerment in most jurisdictions. The felony murder rule is that if a defendant commits a felony and someone dies as a result, the defendant is guilty of first-degree murder—eligible for the death penalty—even if the death was unintended. The Eighth Amendment does impose some limitations, e.g. the getaway driver for a bank robbery can’t be executed for the felony murder of the actual robber shooting someone, but Luthor is clearly putting people’s lives in danger, so the fact that Superman’s death is a bit outside the immediate scope of the sabotage isn’t going to matter. This is the “extreme indifference to human life” about which the Supreme Court spoke in Tison v. Arizona, 481 U.S. 137 (1987).
The resulting argument thus goes as follows: “Luthor sabotaged the sundiving mission. Superman came to help and died as a result. Q.E.D.” That oughta do it.
As a side note, the comics don’t really specify what court has jurisdiction over Luthor’s case. There’s a good argument that it must be a federal case, as the underlying felonies occurred in space on a ship launched from the U.S., triggering federal extraterritorial jurisdiction. The federal murder statute recognizes the felony murder rule and allows for the death penalty in such cases:
(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder … committed in the perpetration of, or attempt to perpetrate, any arson …, murder, kidnapping, … sabotage; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
(b) Within the special maritime and territorial jurisdiction of the United States, Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life
So yes, it does seem that Lex Luthor can be held criminally liable for Superman’s death, and not just liable, but liable for murder and eligible for the death penalty. But that’s not the only thing going on here. Luthor is also charged with “crimes against humanity,” which is a whole different kettle of fish. Then there’s the question of how exactly one would go about proving Luthor’s guilt here, and more generally speaking, how a prosecutor could go about establishing guilt for supervillainous activities. We’ll get to these in a later post.
If you’d like to check it out, the Absolute Edition of All-Star Superman was released earlier this month