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.

III. Conclusion

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.

19 responses to “Sleeper

  1. Isn’t the standard dodge (I think it may have been an Isaac Asimov story) for Miss Misery’s situation that if you refuse to do bad things but must to stay alive, that is attempted suicide, and that’s immoral, and therefore keeps her alive?

    Also, one would think that if the power doesn’t work on her perception, and actually taps into some sort of absolute morality, you now have a scientific way to determine morality. No need to consult ethicists about those stem cells, just see if participating in stem cell research keeps her healthy or not.

    • That goes back to Gilbert & Sullivan’s Ruddigore at least. The title character (and his family) is cursed to commit a crime each day or die. He doesn’t want to, and commits the most minor acts possible. Eventually someone makes the argument above, and the play concludes with Ruddigore committing the crime of attempted suicide by lack of crime every day for eternity.

    • The whole attempted suicide approach doesn’t seem like it should work. After all, you are not really trying to kill yourself. Quite to the contrary. The “attempt” is made to keep you alive.

      I looked carefully in the book to try to figure out whether Miss Misery’s power depends upon a personal or absolute conception of morality and I couldn’t figure it out.

    • Just from reading the description, it doesn’t sound mystical. But more like a gritter version of the standard superhero psychic energy-channeling, i.e. “anger is an energy”. With the downside that she gets addicted to the energy, so suffers withdrawal if she doesn’t generate/channel for a while. So it would be perception-based, working off the “thrill” she got for rule-breaking.

      I found this hilarious: “When she heard a male nurse tell another that her illness was all just in her head, she became furious and kicked him. She was surprised to feel better afterwards …”

      Indeed. Many people would feel better afterwards, even without it being a super-power charge.

  2. I’m pretty sure original source of the “attempted suicide” dodge is Ruddigore by Gilbert and Sullivan. That said, Asimov was a total G+S fanboy, so it wouldn’t surprise me if he used it at one point too…

  3. Thanks for doing the post. I probably should have indicated in my email the R-rated nature of the series.

    I’m wondering whether Miss Misery could actually limit herself to the minimum offense to keep her alive and reasonably healthy or if such self-imposed limits would be too moral of a decision for her to bear…

  4. I’m sure there are at least some immoral acts that don’t cause any significant harm to anyone, like, say, voyeurism. Or there are arguably immoral acts that are legal and widely practiced, like driving a car with crummy gas mileage or choosing not to recycle.

  5. I don’t know much about Misery’s powers (and the nature of morality in this series) so I can’t say for sure but it seems to me that there are at least a few different ways that she could do this without being a villain*. She could go into a business that is generally considered immoral such as tobacco, firearms, one that is known for danger and poor standards such as coal mining or one that exploits workers in a Third World country (that name is getting increasingly obsolete).
    If working in a business that technically follows the laws to the letter isn’t enough then she could work as a spy in another nation. By the standards of that nation it would certainly be immoral and undoubtedly illegal to spy on them.
    She could be a lobbyist for authoritarian nations in D.C, putting them in the best light while downplaying their oppressive nature.
    Lastly she could regularly take part in exercises such as protests outside abortion clinics** with the intent to frighten people going in. Surely deliberately scaring someone is at least dubious morally speaking.

    *Sort of.
    ** Please note that I am not taking a political stance on the issue.

  6. If we study Miss Misery from the point of view of psychology then we have to assume that it is her feelings of guilt that improves her health. It can’t be any abstract sense of morality. Consider: everybody behaves in a manner that they themselves consider to be morally correct. In other words people feel that their actions are “justified”. Even someone who is insane who cannot account for why he does certain thing has a justification for his actions, namely his insanity. Ironically, _legally_ insanity can justify almost anything, as can self defense, but “He deserved it” isn’t going to fly in a court of law even though the defendant may honestly feel that he has as much right to pass judgment on others as the court has to pass judgment on him.

    So why do people behave in a manner that we consider immoral? It is because morality is relative. It’s as simple as that. So why do people feel guilt? People feel guilt because they are aware of the fact that their own moral code differs from the moral code of the people who are in authority and thus may pass judgment. A teenager may feel that he is morally right to buy a Playboy magazine. (After all, he just wants to read the articles.) But he is still going to hide it under his bed when he gets home so his mom won’t find it.

    People are suggesting that Miss Misery has to commit crimes in order to stay alive but this is not the case. What if every day she had nothing to eat but cake? She would get fatter and fatter and, for most women, that would provide enough guilt to sustain her. Too bad she’s not a middle aged man because she could go on the internet and pretend she’s a teenaged girl and that sort of deception day in and day out would make most people feel guilty.

    The problem is that if her health depended on feelings of guilt then it would be like an addiction and that is a very bad diagnosis: basically anything she did she could eventually start to feel okay about because she knows she is doing it to save her life. The justification thus eases the guilt and thus creates the need to commit more villainous acts.

    There is hope, however. In real life the simple solution would be to seek a cure for her condition! It seems obvious to me that she needs medication that will increase her anxiety! That way she would feel guilty even when she hasn’t done anything terribly wrong! Of course, she would develop a physical dependency on the medication (and one might argue that she already had developed a physical dependency on the effects of the medication beforehand) but it would appear to be the simplest solution.

    Medication! Always the perfect solution! I just hope she has insurance.

    • I would that it’s most logical to assume that Misery’s guilt has to be based on her feelings of whether or not she is guilty, but in comics it’s hard to be sure. I think there have been at least a few objects or individuals related to definite ‘good’ and ‘evil’ in different comics. In whatever world Misery lives in, there might be some objective good that everything has to live by*.

      * Which sounds rather totalitarian actually. Is totalitarianism alright when it is definitely good? And now we’re back at the obvious subjective problems.

      • Then there’s the question “What if she were a true sociopath and didn’t feel any guilt?” I mean, most people feel guilt when they know they are doing something that society considers wrong (even if they can justify the actions to themselves) but what if she didn’t feel any guilt at all? Would even the most heinous crime be able to sustain her if she didn’t have any sense of right or wrong?

    • This is getting a bit far from the law, but I am going to respectfully disagree

      People do not always behave in a way that they themselves believe to be morally correct, or even justified. Sometimes they simply give into impulses, either because they didn’t think or because they felt right or wrongly that their will was overwhelmed.

      To give an example (albeit not a particularly moral one), I stepped on the scale this morning as part of getting back to running. I was disturbed by the results and told myself that in addition to returning to running I was going to watch my eating scrupulously at least for a while. Just a few hours later, I took a chocolate from my coworker’s candy tray and ate it with little thought. I regretted it almost immediately.

      I think many petty immoralities fall into categories like that. We do them either without thought at all, or by giving in to an impulse. It is more a small, petty surrender in the heat of the moment then it is any attempt at “justification.” I have regretted breaking previous diets even while actually in the act of doing it, and many other times I have regretted unkind words and petty cruelties very quickly thereafter. Not because I thought society disagreed with me, but because *I* disagreed with me, at least after the heat of the moment passed.

  7. According to the post: the Executive pardon must be after the fact. My thoughts went to 007’s “License to Kill”, is there any legal basis for such a license? I was under the impression it would work in other countries as a Diplomatic Immunity, but in the UK would it could have been a guarantee of pardon by the Queen.

    • You might have a guarantee of a pardon, but that isn’t the same thing as legally having a blank check to commit any crime. I’m not certain what U.K law says for M.I.6, but for the U.S military, law enforcement and intelligence agencies there are still rules of engagement and the sort to follow. Those rules and orders might be crafted in a way to guarantee that someone ends up dead* but even then I don’t think you can just have total freedom to kill.

      Come to think of it, Bond (or at least the U.K) could be sued for a very large amount of death and property damage. Good thing that despite being the most visible spy possible no one seems capable of recognizing him.

      *Something that may or may not have happened with bin Laden.

    • Diplomatic immunity has to be granted by the country to which the diplomat is sent. The diplomats don’t show up until the host country knows they’re coming. A diplomat killing somebody would be a huge embarassment to both the sending and receiving country. The sending country will look like they are too incompetent to send law-abiding diplomats, and the receiving country because they can’t protect their own citizens and maintain a monopoly on violence in their territory. It’d at least cause a major diplomatic crisis, if not a complete rupture in relations. (Imagine for a moment that James Bond was granted diplomatic immunity by President Obama, acting through Secretary of State Clinton, and Bond then proceeded to leave a trail of bodies across the American Southwest–think that wouldn’t show up in campaign commercials during 2012? Dictatorial states also have limits to what they can allow their public image to be, and constituencies of their own to look after, even if it isn’t voters.)

      • I hate to reply to myself, but I think I was wrong in the semantics of my prior post. I was under the impression that somebody getting diplomatic immunity had to get a diplomatic visa from the receiving state prior to arriving. Apparently, it’s only necessary for the sending state to notify the receiving state that somebody is a member of the staff, per a briefing by the US State Department: Now, the briefing I’ve linked was made by the State Department specifically to argue that Raymond Davis had diplomatic immunity in Pakistan, so it’s more like a brief by one of the parties in a dispute, rather than a judicial opinion, but it shows that the US, at least, believes that simple notification is sufficient. However, the receiving state does have the ability to kick somebody out for any reason or for no reason, and I doubt that a country would let James Bond stay after being notified of his presence. The larger point about it being embarassing for both countries still stands.

  8. Once Miss Misery knows she’s not guilty of a crime because of a self-defense/necessity acquittal, I’m not sure she gets any health sustaining benefits. It depends on whether there are things that are innately wrong, regardless of sanction, or if acts are only wrong if the law says so.

  9. I think the least harmful immoral thing Miss Misery can do is take pennies from the leave a penny jar and never ever leave a penny.

Leave a Reply

Your email address will not be published. Required fields are marked *