All-Star Superman I: Criminal Liability for Lex Luthor

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.

D. Murder

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.

III. Jurisdiction

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

IV. Conclusion

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

24 Responses to All-Star Superman I: Criminal Liability for Lex Luthor

  1. Minor typo: “Superman came into help” should be “Superman came in to help”.

    Interesting article.

  2. You may have brought this up before, but to play devil’s advocate, the federal murder statute states that murder is “the unlawful killing of a human being with malice aforethought” — emphasis on “human being.” I would be hard-pressed to see a DC Universe court make this distinction, but would Superman actually fall within the purview of the letter of the law? (I know you have addressed this before, within the purview of whether Superman was an immigrant, and I feel like you also addressed the subject of extraterrestrial intelligences already, but I cannot find the post.)

    • The conclusive post on non-human intelligences is here.

    • My own cursory research on another subject (which I’m hoping will turn up as a later post on this blog) suggests that there isn’t actually a specific legal definition of a human being under US law. It seems to be an “I know it when I see it” kind of thing. So I think it could be argued that Superman deserves to be considered human under the law, since he can fulfill all the functions and responsibilities of a human and then some.

      • That was basically the conclusion we came to, if you’ll read the above link. If a particular being is capable of asking for the legal status of a human being, and can hold a conversation about it, and there isn’t any obvious reason to exclude it (i.e. it’s a machine), a court may well decide to just go with a “looks-like-a-duck” argument.

    • I know earlier posts have asserted that aliens would probably count as legal people. But are you really sure intelligent aliens count as ‘people’ under the law? Didn’t Mississippi just try to legally define a person as a ‘human being’ from the moment of conception to death?

      As a non-lawyer, that sure sounds like you have to be human to be a person. If you don’t need a brain to be a legal person, why would having a mind qualify you as a person?

      • That Mississippi initiative was defeated, so it doesn’t count.

        Legally the definition of “person” can be extended to things such as corporations, so it isn’t really contiguous with “human being.” And like I said, there doesn’t seem to be a formal legal definition of what “human being” means to begin with.

  3. Maybe I’m missing something, but didn’t Luthor attempt to murder the crew of the Ray Bradbury? Sure, he was gunning for Superman, but if Supes was unable to reach the ship in time, those people would be dead.

    • An interesting question, and one which we didn’t address.

      Attempted murder, like all incohate offenses, is a specific-intent crime, i.e. the defendant needs to have acted with the specific intent that the victim die. This intent does not transfer. Unless Luthor actually wanted the people on the spaceship to die, as such, the fact that they wind up in mortal peril is not enough to ground a charge of attempted murder. He’s still got the reckless endangerment charge, and would be guilty of reckless homicide if they’d died, but because he didn’t actually seem to care one way or the other about them, it can’t be attempted murder.

  4. “So there’s a real question about whether Luthor could realistically have believed that what he was doing was going to hurt Superman.”

    Luthor is a scientist. He knew exactly what was going to happen when Superman overdoses on Sunlight.

    Also did Luthor replace the scientist or just turn him into a bomb? I don’t recall. If he turned him into a bomb then isn’t that straight up murder?

    • Did he now? Again, in other Superman stories, getting exposed to sunlight doesn’t hurt Superman at all. For example, in Justice, Superman actually has Captain Marvel throw Superman into the sun to get rid of Brainiac’s mind-controlling nanobots. Granted, this is a different story, but we’re still talking about a guy who is, for all intents and purposes, invulnerable to everything but Kryptonite. It’s far from obvious that this is something Luthor would have known, and how he knows it, if he does, is not discussed in the story.

      Even so, if Luthor did know that overexposure to sunlight would hurt Superman, that’s something the prosecution would need to prove. How one would even begin to go about proving that is something we’ll talk about in a later post.

      Oh, and the scientist/human bomb? No real discussion. Could have been modified, could have been a replacement, could have been anything really. No discussion is given of it before or after the event. It’s not even entirely clear what the thing is. So while it is possible that this thing could have subjected Luthor to criminal liability in its own right, we have nothing really to go on in terms of what that might look like.

      • I just went back and re-read the issue myself. I believe that the crew of the Bradbury (apart from Leo Quintum) were all genetically-engineered P.R.O.J.E.C.T. clones.

        Presumably, Luthor either replaced one of them with a clone of his own creation, or hacked the creation process on one of Quintum’s. The story doesn’t really delve into their legal status, but an argument could be made that the ‘human bomb’ exists solely to blow himself up (he says so himself).

  5. We were shown that Luthor was operating the “living bomb” by telepresence — he would say or do something, and then “nine” minutes later (that should actually be eight and a third minutes), once the signal crossed the distance from the Earth to the Sun at the speed of light, the “bomb” would repeat the same words or actions. That suggests that the “bomb” wasn’t actually a sentient being at all but merely an organic puppet. The clincher, the thing that proves this beyond doubt, is that Superman allows it to explode and die. Superman would never have done that if it had been a sentient being.

    Now, what this shows about Luthor is his uncanny predictive ability — he could extrapolate exactly what the other members of the solar probe’s crew would say and do over eight minutes in his future and 150 million kilometers away. And he got it right. Keep in mind that this is a version of the Silver Age Luthor, whose mental gifts are as implausibly advanced as the Silver Age Superman’s physical gifts. So given that fact, it stands to reason that, yes, Luthor was equally able to predict exactly what would happen to Superman if his cells were supercharged with solar radiation. So he acted with the deliberate intent to kill Superman. The only reason he attacked the solar probe in the first place was to lure Superman to his death. I’d say that counts as attempted murder with premeditation.

    As for the time delay, what if a doctor implanted some unknowing person with a capsule that was designed to last thirteen months before dissolving and releasing a fatal poison? That would count as murder, wouldn’t it? Regardless of the delay, the doctor’s action directly led to the person’s death and was intended and expected to do so.

    • I don’t think your example is analogous. In the case of the person with a poison pill implanted in them, the doctor could intervene to save the victim until the pill dissolves. Superman’s case is closer to a person who has already been poisoned and now has fatal dieses. Say, the doctor gave the person a large dose of radiation and the victim now has bone cancer.

  6. “Superman does wind up dying from those actions”

    Actually, its not clear at all that he does die from this. Or that he is even truly dead at the end of the series. He is being transformed into some sort of solar energy consciousness in the last issue.

    He is “dying”, but flies into the sun never to be seen again in order to save the sun from Solaris, one of Luthor’s allies. Lois is shown openly hoping that he is still somehow alive inside of it in one of the last panels. .And there is a last image of him tansformed into a being of energy working inside the sun.

    Its possible flying into the sun the second time is what actually killed him, which would be a suicide assuming he is dead. Its compliacted by the fact that the Luthor caused accident had weakened him and that he might have survived this later trip to the sun otherwise, but its not clear he would be alive today (assuming he is dead) if not for Luthor sabotaging the first mission.

    I don’t think there were any witnesses to the actual “death” and there is certainly no body or way to prove he is dead..

  7. For the attempted murder part it isn’t relevant for that charge. But for the year and a day discussion and the discussion of possible murder charges it is relevant.

  8. Pingback: All-Star Superman II: The Trial of Lex Luthor | Law and the Multiverse

  9. Superman isn’t human. Wouldn’t that exempt Luthor from the murder charge, at least in Supermans case?

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