The Surrogates: Flesh and Bone

The Surrogates is a limited-run 2005-06 comic series about which we did two posts (1, 2) late last year, and which was made into a movie starring Bruce Willis in 2010.

This time we’re writing about the prequel graphic novel, The Surrogates: Flesh and Bone. The entire series is available in hardcover. Flesh and Bone is set fifteen years before the main series and deals with a sensational homicide case: a minor operating his father’s surrogate unit beats a homeless man to death, more or less just to watch him die. The killing has all the hallmarks of a major news event: the accused is white, the victim black; the accused is rich, the victim poor; the accused is operating a surrogate, the victim is a “boner,” the kid’s slang for someone who lives his life in the titular “flesh and bone”.

Like the comic series, Flesh and Bone includes various miscellany in the form of advertising materials, news stories, and scholarly articles, all about surrogates and their impact on the world. One of these involves a fictional Supreme Court case where the court ruled that employers may make owning a surrogate a condition of employment. In this post, we’ll look at both the homicide issue and that labor issue, which we touched on last year.

I. The Ignorance Defense to Homicide

The homicide case winds up being pretty straightforward in terms of the investigation. Because surrogates are all networked and registered, the police can get a warrant to figure out who owns which surrogate pretty easily. Indeed, in the movie they’re shown getting warrants from federal district court within seconds. So when the police find the victim, it doesn’t take them long to track down the owner of the surrogate unit involved in the killing. From there, it doesn’t take long to figure out that it was the surrogate owner’s son, not the owner himself, who had been operating the unit during the homicide. Open and shut, right?

Well. . . no. The family’s lawyer suggests a rather novel defense: ignorance. The boys had intended to commit some good, old fashioned vandalism. They had no idea that poor man was an actual person! A lot of the plot centers on finding evidence to suggest that this wasn’t true, but the question for us is whether it would be a good defense to a homicide charge if it had been.

This gets a little complicated and actually requires some conjecture. First, we start with the definition of murder. Murder requires the deliberate, premeditated killing of another person. Defense counsel’s theory in this case is that because his client didn’t know that the entity being attacked was a person, not a surrogate, that the intent element is missing. Here there might actually be a factual problem. The wider stories suggest that damaged surrogates look like broken robots, not injured people. So there’s a real question about whether any jury would believe that a person operating a surrogate wouldn’t be able to tell the difference between a real person and a surrogate once the attack had commenced. But this issue is never really addressed by the authors, and we’re not concerned with plot consistency as much as legal analysis, so we’ll let that by. Assuming that’s a plausible reading of the facts of the story, then yes, there’s a problem.

Or is there? There’s more than one way to get at murder here. What about felony murder, i.e., the rule whereby any death that occurs during the course of the commission of a felony is treated as murder? That’s a possibility. But we have to rule out assault as the predicate felony. It turns out that there might actually be grounds for an assault charge here, even if the boy thought he was attacking a surrogate, because in some jurisdictions assault can include intentionally causing reasonable apprehension of imminent bodily harm.  It is possible that someone operating a surrogate would, despite knowing that they are “invulnerable”, still flinch at an attack, which could qualify as an assault.  But assault or battery can never ground a felony murder charge, because assault/battery are lesser-included offenses to homicide. Otherwise, every deliberate killing would be murder, because every deliberate killing stems from an underlying assault.

That aside though, it turns out that deliberately damaging other people’s property is classified as a felony in some states, particularly where the property is expensive. And while some states have limited the felonies that can ground a felony murder charge to a specific list, Georgia still seems to let any felony count. So even if the prosecutor had no evidence that the attacker believed the victim to be a real person, he has more than ample evidence to charge the boy with a felony, i.e., “criminal damage to property in the second degree,” and use that to base a felony murder charge on.

But even if the intent requirement of murder could be defeated by the defendant’s ignorance, there’s still involuntary manslaughter or negligent homicide.  The kid should have known that he was beating up a real person, not a surrogate, and his negligence led to the victim’s death.  Not quite as serious a crime as intentional murder, but exactly “out on probation” material, either.

II. Mandatory Surrogacy

Then there’s the issue of whether employers may require employees to provide their own surrogates. The story mentions a fictional Supreme Court case that ruled that they can. Under current law, this is not as much of a stretch as it might seem at first glance. Employers are permitted to require employees to provide certain things on their own, like work clothes, sunglasses, and even cars. Certain things like clothes, which the employee was probably going to have to buy anyway, which aren’t terribly expensive, and which have plenty of non-work utility, are uncontroversial and not that big of a deal. Dress codes are a basic fact of the workplace. Now uniforms are generally paid for by employers, but (1) these have very little non-work utility, (2) the employer has an interest in making sure uniforms are, in fact, uniform, and (3) the employee probably has to return the uniforms when they leave the company, if they’re allowed to take them home at all. Abercrombie and Fitch were hit with a class action lawsuit about the alleged requirement that employees purchase clothes from A&F. The company settled for $2.2 million.

But consider cars. Employers are permitted to require that employees drive their own cars on company business. They’re not even required to reimburse employees for mileage. A federal judge recently decertified a class action by Domino’s delivery drivers about related issues. So why shouldn’t employers be permitted to require the use of surrogates? Just like with vehicles, employers that don’t provide any kind of compensation for this requirement may find it difficult to attract and retain quality employees, but as long as the employer doesn’t mind rust buckets, they’ll find people willing to deal with this.

But if the employer wants to exert significant control over what their employees’ surrogates look like, they will almost certainly be required to pay for them. Like with clothing, employers may impose very general guidelines, e.g., “professional dress” or “business casual,” particular choices are left up to the employee. So permitting employers to require that employees use a surrogate is not that ambitious a claim. But permitting a requirement for a top-end model, or one that looks a certain way, sounds more like a uniform. Troubles there seem more likely than pizza shops requiring that their drivers have Mercedes, but it’s the same kind of thing. A minimum wage employer that required attractive, fully-functional models without providing any compensation for them may find that they simply don’t have any employees.

I think it would be far more likely that employers in such situations would simply field company surrogates that employees could operate while they worked. No discrimination issues, no labor-law issues—employers absolutely can require employees to use the equipment they provide—and far greater control over the quality and uniformity of their workers’ units. Expensive, to be sure, but in the long run it might well be cheaper than dealing with employees’ non-standard units. Economies of scale for purchasing and maintenance, unified insurance policies, etc. Indeed, one would think that a world which had perfected surrogates would see far more in the way of remote operation of all sorts of machines. Why have your employees run surrogates if they can operate a fryer and grill with waldos?

III. Conclusion

So as to the homicide issue, while the defense’s argument has some initial plausibility, there are two problems. First, it doesn’t seem consistent with the way surrogates are portrayed. You hit one, and you get sparks and parts, not blood, so as soon as the attacker saw blood on the victim, that would seem to demolish the ignorance defense. But second, even ignoring the consistency issues, deliberately setting out to damage a surrogate would probably be a felony in its own right, one that would not merge into homicide, and would thus serve as an adequate basis for felony murder.  At a minimum, the defendant could be charged with involuntary manslaughter.

But the suggestion that a future Supreme Court might permit employers to require employees to provide their own surrogates as a condition of employment does not seem as far-fetched as it may sound. It’s not that far a stretch from some existing labor practices. Things get a little dicier when we talk about requiring units of a certain type or quality, but an employer that really cared about such things would probably find it easier cheaper to just maintain a bank of company surrogates, so it’s likely that a lot of the more egregious situations would resolve themselves that way. And an employer that doesn’t pay enough for their employees to afford surrogates but requires them anyway might well find that they don’t have any employees. We already seem some borderline cases with cars there, but it’s not a terrible widespread problem. As requiring surrogates would likely affect far more people than requiring cars—most employers don’t care how you get to work as long as you get there on time—that issue seems like it would probably be dealt with one way or the other.

Really though, Flesh and Bone is a great addition to the Surrogates corpus. If you liked the original, you’ll like the prequel.

31 responses to “The Surrogates: Flesh and Bone

  1. You mention in the article that you can’t have assault ground felony murder because if you did, “all deliberate killings would be murders.”

    But…shouldn’t that be the case?

    It occurs to me as I write this that you might mean “all accidental killings during a fight,” not “all deliberate killings,” since manslaughter would thus be auto-upgraded to murder in such situations. Am I right, here, or am I missing something?

    • You’re right, but you’re missing something. 🙂

      Various jurisdictions have various levels of homicide which are punishable by various punishments. In most jurisdictions which have “felony-murder” laws, a felony-murder is right up there with what most people probably think of as “first-degree murder,” the worst possible crime with the highest possible (or near to it) level of punishment. IIRC felony-murder can be a capital crime in some jurisdictions.

      One can deliberately kill someone and still not have committed “first-degree murder,” most usually because of some mitigating circumstance like extreme provocation, mistake of fact not rising to the level of a complete defense, or whatever. Any level lower than this is usually, at the very least, not a capital crime. If we allowed assault and/or battery associated with the homicide to automatically elevate the homicide to a felony-murder, we’d lose the other levels of deliberate homicide, and the ability to punish them at below the capital level. That’s what you’re missing – that we recognize degrees of deliberate homicide, for varying definitions of “deliberate.”

      • It does depend on the jurisdiction, but places that have felony murder laws frequently have felony murder classed as second degree murder. Very generally, second degree murder normally involves a willful killing, but first degree murder usually requires more than just a willful killing such as deliberate premeditation.

        You are still right that allowing assault to form the basis for a felony murder charge would increase penalties in many cases. Killing someone in a fist fight is normally voluntary manslaughter (or even involuntary manslaughter under the right circumstnaces). Allowing assault to form the basis of a felony murder could easily turn that into a second degree murder.

        Also, its worth noting that just because the death penalty is authorized for a certain crime doesn’t mean it will actually be sought much less imposed. And while very jurisdictional the death penalty often requires aggravating factors above and beyond a murder before it becomes authorized.

    • No, it shouldn’t. Murder is deliberate, premedidated homicide. Deliberate, unpremeditated homicides, e.g., those committed in the heat of passion caused by adequate provocation, are not murder, but voluntary manslaughter or second-degree murder, depending on how the state writes its statutes. Hot-blooded killing is not generally considered to be as bad as cold-blooded. But if assault/battery were permitted to ground a felony murder charge, that distinction would go away.

      • So, why is felony murder, which results from committing a different felony with no real intent to kill anybody, treated as MORE severe than voluntary manslaughter/2nd-degree murder?

        Why would I, for instance, if I stole some guy’s car with the deliberate intention to wreck it in a junk yard, be punished more for him getting battered to death in the trunk when I didn’t know he’d been tied up and left back there…than if I were to get into a fight with him and killed him on the spot in a fit of passion?

        In the former case, I can plead, “I didn’t know anybody was in there! I never would’ve hurt somebody physically on purpose!” In the latter, all I can plead is, “But your honor, if he hadn’t made me mad, I wouldn’t have killed him!”

      • James Pollock

        The point of felony murder statutes isn’t to dissuade people from killing people, it’s to dissuade people from indulging in felonies. Even if someone is by trade a car thief, they run the risk of life in prison from car thieving, if someone dies as a result.

        “It’s just a matter of time until somone gets killed!” goes the tough cop’s line, “and then you’re looking at life in prison!”
        And then the good cop can chime in with “we know you don’t want to be responsible for killing someone, so give up the car thieving now, before it’s too late…”
        — from every TV cop show, ever.

      • If the logic goes that it’s meant to dissuade by putting a disproportionate punishment on the mens rea of the perpetrator, wouldn’t it make more sense to just make all felonies have the same punishment as felony murder, rather than making it only kick in if they get unlucky enough to kill somebody?

      • Melanie Koleini

        “If the logic goes that it’s meant to dissuade by putting a disproportionate punishment on the mens rea of the perpetrator, wouldn’t it make more sense to just make all felonies have the same punishment as felony murder”
        If all crimes carry the same punishment, what will stop a robber from becoming a murder? After all, if the victim is dead, they can’t identify them in a lineup.

        Felony murder laws give criminals a reason to be careful not to kill their victims (accidently or otherwise).

      • Puts more oomph on preventing reckless endangerment. Okay, that makes sense.

      • Martin Phipps

        Or, to put it another way, while there may not have been a pre-meditated intent to kill anyone there was definitely a pre-meditated intent to commit a felony. If you hit somebody and he falls backward and hits his head and dies then this is a “deliberate act” and not an “accident” but it doesn’t really matter whether it was deliberate or accidental because there was clearly no intent to kill.

  2. Does the work show the corpse of the victim with any visible injuries? Beating the victim in an area covered by clothes seems like it would prevent the attacker from seeing an injuries that would distinguish a real human from a surrogate.

  3. What about depraved indifference? Even if the defendant claims they thought the victim was a surrogate rather than a human being, isn’t beating it (a figure that looks an awful lot like a live human being) to death before you find out whether it is a person or a surrogate going to fall under depraved indifference murder?

    • It might. But states treat that differently. Georgia does treat “depraved heart murder” as first-degree murder, but many other states do not. But you still need to prove, under “all the circumstances,” that the defendant had an “abandoned and malignant heart”. Doing that could be tough when the defendant might plausibly suggest that they had no idea death might result from his actions.

      But in in Indiana, this falls under “reckless homicide” and is only a Class C felony. Which is serious, but you’ve got Class B and Class A felonies are more serious, and murder is in a category all its own. So going for that wouldn’t have been very satisfactory for the prosecutor or the mob.

  4. Couldn’t the vandalism be the underlying crime? Granted, most vandalism is probably a misdemeanor, not a felony, but presumably if the vandalism is to something expensive enough and does enough damage, it could be a felony (ie smashing the crap out of a Mercedes to the point that it is not drivable v keying a clunker). So at that point, the defense of “I was just intending to commit vandalism” could back the kid into felony murder, or at least misdemeanor manslaughter if they’re in a jurisdiction where that exists.

    • That’s actually what I’m arguing, but many states don’t actually have “vandalism” as a defined crime. “Criminal mischief,” “criminal destruction of property,” etc. are preferred terms in many state statutes.

  5. “Things get a little dicier when we talk about requiring units of a certain type or quality”

    I think that’s heavily situational… While it’s completely true in the case of something like the Domino’s driver you cite (where a certain bare functionality answers the need), what about more specialized trades? Mechanics and carpenters (for example) are frequently required to provide their own tools, and there’s certainly an expectation that the tools will be of sufficient functionality and quality to perform the standard work of their trade. Or, the requirement may be implicit rather than explicit – a carpenter trying to use a standard surrogate may well find himself at a competitive disadvantage against those using more specialized units.

    • Yes, but mechanics and carpenters are frequently either independent contractors or union workers, neither of which fall under traditional employment regulations. Independent contractors always provide their own tools and equipment, and unions are their own thing entirely. Neither really fits in this analysis all that well. They’re handled on their own terms now and presumably would continue to be when considering surrogates.

      • James Pollock

        Are surrogates consumable (that is, do they wear out and fail with usage?) If that is the case, then perhaps the way they are used on the job determines how quickly they are “used up” and businesses have successfully argued that since the operator determines how long the surrogate unit lasts, shifting the cost of consumable safety equipment to the worker promotes careful use.
        That’s probably the (fictional) reason I’d use to back it up had I written the original story… in those organizations where employers supplied them, the workers didn’t take care of them properly, driving up costs for the employer, and as a result, the employers shifted the cost to the operators, giving them solid incentive to treat the surrogate(s) with care.
        If everyone’s using surrogates paid for by someone else, I think that life-size “Rock ’em Sock’em Robots” is the inevitable result. Ask anyone who works in a warehouse if they’ve ever been involved in a forklift race.

    • I would think that they could give general requirements without getting too specific. Like a dress code – standard business wear is usually more expensive than business casual, which is usually more expensive than casual dress. You can specify a category without discriminating beyond that.

      For example if a low-end surrogate looks like a mannikin you might require realistic skin and hair tones.

  6. Great article.

    Depending on how the attack was carried out (I haven’t read it yet), the fact that surrogates appear different when damaged may not matter though. If he beat him through clothing in a way that caused internal damage but didn’t immediately break skin in a way that would show the difference he might not have seen indicators that it was a human (or at least it would be very hard to prove that he had) before the death.

    There might be a small issue using criminal damage to property since that seems to recall actual damage to property of over $500. Unless the man was wearing a very expensive suit, that simply didn’t happen. And Georgia’s felony murder law seems to require the felony actually occurred. Now if there was a felony for attempt to commit criminal damage to property that would work, but that doesn’t seem to be present.

    • What crime is “I meant to destroy property that wasn’t my own but I killed a guy when I did it”? Some level of manslaughter? It can’t drop all the way to negligent homicide, but it’s still a fairly serious felony (and still leaves open the wrongful death tort suit).

      • Ryan Davidson

        Felony murder, assuming the underlying offense is a felony. Misdemeanor manslaughter (in those states that have it) otherwise.

      • Ken Arromdee

        Wouldn’t felony murder depend on whether “attempted destruction of property” is a felony, not on whether “destruction of property” is a felony?

      • @Ken Arromdee I was curious about that too, so I looked it up. The Georgia law is in O.C.G.A. 16-5-1(b) and reads: “A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.”

        I did not look up the case law, but a plain reading seems to suggest that for it to justify 1st Degree Murder the felony in question needs to be actually committed. So, barring a broad reading of “commission” in case law, I think here they might have a hard time showing that he actually committed another flony.

        For comparison Nevada (my home state) covers it in NRS 200.030 (b) and reads: ” (b) Committed in the perpetration or attempted perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual molestation of a child under the age of 14 years, child abuse or abuse of an older person or vulnerable person pursuant to NRS 200.5099;”

        So in Nevada the statute expressly permits felony murder to apply to an attempt to commit the requisite felony. However, it cuts the list down to a series of named crimes that don’t include generic vandalism or destruction of property. So that one wouldn’t help.

        If I find more time later I might look at the case law in Georgia, but a plain reading doesn’t seem to make it an option in this case.

      • Ryan Davidson

        Tim, I think you’re being too clever by half here. Attempt is a felony, and just as serious as the target offense. So if we’re talking about robbery, which is generally a felony, attempted robbery is also a felony. Regardless, Georgia case law is pretty clear that attempted felonies can serve as the basis for felony murder charges. Check 273 Ga. 477. The court dismissed the charge in that case, but on double-jeopardy grounds. They assumed without comment that the felony murder charge followed from an underlying attempt felony.

      • James Pollock

        Can transferred intent ever function so as to transfer from an inanimate object to a person. (“I wasn’t shooting at him, I was trying to shoot out the tires of his car so he’d quit following me. When I couldn’t hit the tires, I shot at the radiator instead. Guess I missed that, too.” That’s the closest hypothetical I could think of to “I only meant to damage property but I killed someone instead.” It’s certainly not an accident, doesn’t appear to be an intentional homicide, and criminally negligent homicide seems to be an undercharge (to my non-criminal-law oriented impression, anyway).)

      • Martin Phipps

        “I wasn’t shooting at him, I was trying to shoot out the tires of his car so he’d quit following me.”

        Are you in a car or walking at this point? I’d be scared if somebody came up behind me in a car. If you can establish that you were being followed then you could claim self-defense. I am sure a jury would be sympathetic, especially if it was late at night and there weren’t people who could help you. Of course it would be hard to establish that the car came up behind you and you didn’t just simply walk out in front of the car and assassinate the driver.

        It would be different if you were in a car and somebody was driving behind you: you would have less reason to claim self defense. (You could just drive away.) But it would be easier to establish the facts of the case, that is to say that you were in a car and shooting at the car behind you.

        Castle laws may apply in some states. I know this isn’t the subject of this blog but screw it: if Reed Richards is in the Fantasti-Car and he shoots Dr. Doom with the Ultimate Nullifier and Dr. Doom is vaporized is that murder or is Reed Richards defending his property?

        Seriously, Batman did kill somebody with the Batmobile in Batman Returns so we might have a legitimate question for a future blog: we know that if Batman is in Wayne Manor or the Batcave and he kills an intruding villain then (depending on the state) castle laws apply and Bruce / Batman does not get charged with murder but if somebody attacks the Batmobile and Batman uses deadly force against them can Batman argue that castle laws apply because the Batmobile is his property and he is defending it?

      • Martin Phipps

        What happens to self defense when you have surrogates? If somebody attacks you while you are using a surrogate can you still claim self-defense even though you weren’t in any real danger? What if he’s a “meat bag” and you end up killing him and the only risk was to your surrogate? I imagine that would be bad news for you and they wouldn’t want to change the law because they wouldn’t want to encourage people from attacking “meat bags” and claiming self-defense.

      • James Pollock

        “if somebody attacks the Batmobile and Batman uses deadly force against them can Batman argue that castle laws apply because the Batmobile is his property and he is defending it?”

        As a general rule, you cannot use deadly force to defend property; deadly force is only authorized to defend the safety of persons. The recent trend was to loosen the restrictions on use of deadly force (so-called “stand your ground” statutes). Typically, there is a duty to retreat if it is safe to do so rather than use deadly force. A “stand your ground” statute removes that requirement to retreat.

        “Castle doctrine” is an older variation; it says that there is no requirement to retreat prior to resorting to deadly force within one’s home (not “on one’s property”… Mr. Wayne can’t rely on castle doctrine to justify shooting someone in the lobby of the Wayne Tower just because he owns the building, and you also can’t use castle doctine to justify setting a deadly trap on an uninhabited building, even if it is a house.)

      • Ryan, you make a great point, thanks. I didn’t look enough before I posted.

        I looked some more after reading your comment and Nevada covers attempts in NRS 193.330, though they generally come with much lower penalties than successfully completing the crime.

        Thanks for elaborating.

    • Oh! Good point! I know from watching CSI (assuming that is accurate) that there’s no blood splatter the first time you hit somebody so you might have to kill somebody twice in the head before you can clearly see that they are bleeding. And assuming a surrogate is stronger than a regular human then it might only take one hit to kill them. After that you’d just be desecrating a corpse.

      (Please don’t get angry if this analysis is wrong. And although it may be considered a real world issue, I wonder: if you kill somebody and later cut up the body after the person is dead are those two separate charges?)

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