The inspiration for today’s post comes from Promethee, who suggested we look at Sleeper, a comic series by Ed Brubaker and Sean Phillips. We’re going to take a look at the premise of the story as well as one of the character’s unusual superpowers. Minor spoilers inside.
I. Undercover Agents
Sleeper‘s protagonist, Holden Carver, is, well, a sleeper agent. Carver works for a “beyond top secret” government agency, which has placed him deep undercover in a shadowy organization of supervillains. Obtaining and maintaining his cover has required Carver to commit numerous crimes, which raises a question not only for him but for lots of other fictional undercover agents: how exactly can they get away with committing crimes in order to maintain their cover?
There are several possible answers. For example, an undercover agent may find himself or herself under duress (e.g. “prove you’re not a cop by robbing that store or we will shoot you”) or in a situation where necessity would be a valid defense (i.e. any time a crime is the “lesser of two evils”). But there are limits to duress and necessity. For example, as we’ve talked about before, they can’t excuse murder.
That brings us to the big trump cards: prosecutorial discretion and the executive pardon. Ultimately it is the prosecutor who decides whether or not to file charges, and if he or she believes that the undercover methods were sound then he or she is unlikely to charge the undercover agent with anything.
Even if a particularly zealous prosecutor did file charges, the governor or President (depending on the jurisdiction) could always pardon the agent. In fact, they could even pardon the agent preemptively, before charges were filed. The Supreme Court long ago held that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” Ex parte Garland, 71 U.S. 333, 380 (1866). This was the basis for Gerald Ford’s preemptive pardon of Richard Nixon. Note, though, that Garland implies that a pardon cannot be given before a crime is even committed, so an agent cannot be given carte blanche ahead of time.
That takes care of the agent’s own liability, but what about liability for the villains he or she works with while under cover? Could they claim a defense based on crimes or other bad behavior committed by the undercover agent? In general the judiciary has shown great deference towards the executive branch when it comes to methods of criminal investigation and prevention, but a few courts have recognized that some methods are so outrageous that they violate due process. See, e.g., United States v. Twigg, 588 F.2d 373 (3d Cir. 1978). The majority of courts have rejected this approach, however, denying that there is a “fundamental fairness” rule that constrains law enforcement.
Finally, I’ll mention that the entrapment defense, which is widely recognized but almost never works, wouldn’t apply to the villains in Sleeper or most other comic books. Among other things, entrapment is unavailable if the defendant had a preexisting propensity for committing crime, which the villains in Sleeper clearly do, so Carver’s participation and even leadership in their schemes would not prevent them from being prosecuted.
II. Miss Misery’s Superpower
One of the villains we meet fairly early on in Sleeper is Miss Misery, who has the unusual power of becoming healthier and stronger when committing immoral or criminal acts while behaving morally leads to her becoming weak and sickly. This raises a question: could she legally sustain herself or would the law doom her to waste away?
Here I think the answer is pretty straightforward. The defense of necessity would probably entitle her to some minimum level of rulebreaking sufficient to keep herself alive, but there would be two major limitations. First, as mentioned above, necessity doesn’t cover murder, so that’s right out no matter how sick she got. Second, she would only be entitled to the least harmful act that would still keep her alive and reasonably healthy. This probably means avoiding causing permanent injuries or property loss, at the very least.
Notably, although she’s maintaining her own health, she couldn’t claim self-defense because the people she harms aren’t threatening her.
I’m only partway through the first season of Sleeper, so there may be more issues to discuss later. So far I give it a tentative thumbs up, but before you pick up a copy as a last minute holiday gift, bear in mind that it’s definitely R-rated.