Outlawry, Supervillians, and Modern Law

Before the modern period, the ability of the courts to enforce their authority was quite limited, shockingly so by modern standards. Court was only held in most English towns a few times a year, and it could easily be six or more months before the same court returned. This meant that the risk of a defendant, particularly a criminal defendant, beyond simply not showing up for trial but being completely un-locatable, was far greater than in modern times.

More than that, the mere fact that a court issued an order was no guarantee that said order would have any real effect. As an example, the English Court of Chancery stopped moving around from town to town in the mid-fourteenth century, meaning that most cases in equity were only heard in London, which unless you either lived there or were a landed aristocrat, you had probably never been to. So an order issuing from a court tens or hundreds of miles away, without any extant system of law enforcement–the first English professional police forces only date to the mid-seventeenth century, and the Metropolitan Police were not founded until 1829–was pretty easy to ignore.

So what was the legal system to do? Well, one common tool was “outlawry”, declaring a person to be beyond the protection of the law. The meaning of the sentence changed over time, and it ultimately disappeared with urbanization and doctrines like habeas corpus, but a growth in supervillainy might bring it back into fashion.

I. The Nature of Outlawry

When it was originally imposed in the Middle Ages, a sentence of outlawry was essentially a death sentence that the court did not believe it could immediately enforce, largely because the person was nowhere to be found. An outlaw was a person whom it was illegal to give any food or shelter, and whom it was legal to kill on sight as one might a wild animal. The pronouncement caput gerat lupinum, “Let his be a wolf’s head” (gotta be a lycanthropy storyline in there somewhere) set someone outside the bounds of civilized society. The theory was that a person who failed to show up to answer a felony charge was admitting their guilt.

Still, by the modern period, the definition of outlawry had shifted somewhat. Sir William Blackstone, perhaps the most famous English jurist in history, had already observed by the late-eighteenth century that while outlawry was still a potential sentence for criminals, it no longer permitted an outlaw to be killed at will. Rather, it permitted anyone to arrest them for prosecution and retained the penalties for aiding an outlaw.

Note that even this this arguably watered-down version of outlawry is significantly different from the way the word “outlaw” is used in modern parlance. “Outlaw” motorcycle gangs and “outlaw” country musicians are really nothing of the sort. Sure, there’s some at least feigned anti-social tendencies in both, and the former does even occasionally rise to the level of criminal activity, but neither represent groups of people who exist entirely outside the bounds of the law.

II. The Decline of Outlawry

For a variety of reasons, outlawry slowly fell out of favor in the legal system. For one thing, population growth and expansion made hiding from society increasingly difficult. A supervillain having trouble finding a place to put a lair should have cause to regret that they were not born a few centuries earlier, when there was still a huge amount of unoccupied and undeveloped land to be had. But even by the early modern period, circa 1700, Europe was pretty far towards occupying its remaining wilderness regions.

“Outlawry” does not seem to have crossed the Atlantic as an identifiable legal tool, as by the time of the founding of the American colonies, it was already disappearing in England. Even the famous “outlaws” of the Old West were generally not declared outlaws as such by a court of law. A lot of the bounties posted were either offered by private citizens or local law enforcement, both of which acted pretty much outside the legal system. In truth, the legal situation significantly resembled pre-modern England, where the reach of the court was pretty limited–many judges rode circuit on horseback–and local communities pretty much dealt with things on their own authority. But once civilization made it out there, the advent of the Fourteenth Amendment and the development of habeas corpus jurisprudence effectively ended the practice even in this unofficial basis.

III. Outlawry as a Weapon against Supervillains

So what happens when the Joker, or Magneto, or Doc Oc, or some other immensely powerful figure emerges and does what supervillains do? The whole premise of comic book multiverses is that there periodically appear people/things that society can only be protected from by specially-empowered individuals, that normal methods of law enforcement and even military intervention won’t necessarily work.

Fair enough. But that doesn’t mean that the courts are completely powerless, and it may be time to dredge up outlawry as a useful tool. If nothing else, declaring a supervillain to be an outlaw through due legal processes would permit superheros to go after supervillains whenever and wherever convenient. The issue here, rarely addressed in comic books, is that unless a superhero is working directly for the state, their ability to apprehend and kill anyone, even supervillains, is pretty limited by the law. If the Joker is threatening to drop a bus full of school kids off a bridge, yeah, Batman can do whatever, because deadly force is justified in preventing the deaths of others. But if the Joker is between capers, private actors, like most superheros, can’t go after them without exposing themselves to civil and criminal liability for wrongful death, impersonating an officer, false imprisonment, excessive force, etc. But if the supervillain were declared to be an outlaw, hey, all bets are off. Go nuts.

Second, declaring someone to be an outlaw would make it illegal to transact basically any business with them. Some supervillains may be magnificently rich, evil geniuses, but they still need to get their raw materials from somewhere unless they’re basically running their own country (which is, apparently, an option, albeit a rare one). In this sense, outlawry could be considered an absolute economic embargo targeted at a person or persons rather than a state or government. This could be a potentially useful tool in curbing the power and influence of supervillains.

IV. Reimplementing Outlawry

As discussed above, outlawry is basically gone as a legal sentence, and as useful as it might be, outlawry as it was originally defined is completely incompatible with modern concepts of due process. For starters, declaring someone guilty because they failed to show up for trial violates just about every procedural standard it is possible to name, chief of which is the presumption of innocence, an important civil right enshrined in Coffin v. United States, 156 U.S. 432 (1895), which held: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

So that’s probably out. But trial in absentia is probably out too, at least without some changes being made to the law. Federal Rule of Criminal Procedure 43 requires the presence of the criminal defendant, and Crosby v. United States, 506 U.S. 255 (1993) makes it pretty clear that a criminal who is arrested but escapes or absconds before trial cannot be proceeded against until he appears in court. It may be possible that a trial might be permitted to continue if a defendant is there at the beginning and then voluntarily leaves (see United States v. Lawrence, 161 F.3d 250 (4th Cir. 1998)), but simply bringing charges against someone and going to trial without them would probably not be permitted under current law.

Still, if I were the prosecutor, I’d make the argument that a supervillain that law enforcement is unable to apprehend but who damn well knows about the prosecution is a different case than your standard, underprivileged, uneducated, minority offender that the legal system is right to try to protect from being railroaded or lynched inside the courthouse. One might even limit the definition of “supervillain” to “one who possesses powers or abilities so far in excess of ordinary human beings that forcefully apprehending them would either be impossible or almost certainly cause significant loss of innocent life.”* This might constitute a violation of equal protection, but there’s a good case to be made that such an approach would survive strict scrutiny, in that it is 1) directed at a compelling governmental interest, 2) narrowly tailored, and 3) the least restrictive means of accomplishing said interest. Given that a challenge of this sort would probably be first attempted against a notorious villain the cops are unable to apprehend, and that a sentence of outlawry would manifestly assist both superheros and traditional law enforcement in their efforts against said villain, the pressure to find some way of carving out an exception would be pretty significant. Then again, hard cases make bad law, so whether or not this is a good thing remains to be seen.

V. Conclusion

Outlawry is an old legal doctrine, one more suited to a time where the law is relatively powerless. As such, it has faded from use and is now almost unheard of. But the presence of supervillains might justify resurrecting the doctrine, and a few minor changes to the law could theoretically make this work.

*Note that this definition would exclude so-called “criminal masterminds” who lack any kind of paranormal abilities. So, for example, the Joker and Lex Luthor, under most of their instantiations, would probably fall outside this definition. But Iron Man or someone using Stark technology might not. And there would be litigation.