Supers and the Eighth Amendment

The Eighth Amendment to the United States Constitution reads as follows:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The last phrase, “cruel and unusual punishment,” has a long jurisprudence extending back even before ratification of the Constitution. The phrase appears in the English Bill of Rights which was a key legal step in effecting the Glorious Revolution, and the Eighth Amendment in particular has been a major cause of the gradual reduction in the physical severity of judicial punishments in American history. Today, no state inflicts direct corporal punishment other than capital punishment, whereas as recently as the twentieth century, states were sentencing convicts to hard labor.

All of this may be interesting in its own right, but we’re only talking about it because we want to know whether it would be “cruel and unusual” to, say, sentence an immortal being like Apocalypse to life without the possibility of parole (LWOP).

I. Punishing Supers

A. Life imprisonment.

Life imprisonment appears to have emerged in the nineteenth century as an alternative to the death penalty. It was formally recognized as a constitutional punishment by the Supreme Court in Schick v. Reed, 419 U.S. 256 (1974) (holding that reversing the Presidential pardon which reduced a death sentence to LWOP would be unconstitutional). For most people, a sentence of LWOP is really just a sentence of a few decades. The issue is not limited simply to LWOP either: courts can and do hand down consecutive life sentences. A prisoner convicted of multiple serious crimes which do not reach the level where LWOP is permitted may still be handed half a dozen life sentences with the possibility of parole. Get enough of them, and there’s no chance you’ll ever see the light of day.

But take Apocalypse as our first example. No one really knows how long he’s going to live, but it’s going to be one hell of a long time, seeing as he was apparently born sometime around 3000 BC. Even a very young man who gets LWOP will rarely see more than five decades in prison. Which is bad, but it’s an entirely different kettle of fish than seeing fifty decades or five hundred. So one question is whether sentencing someone who isn’t likely to die to LWOP or to consecutive life sentences constitutes cruel and unusual punishment.

It’s entirely possible that it might, especially given the ongoing debate about the practice of incarceration in general. There have been cases where judges have ordered the release of large numbers of convicts due to prison conditions, especially overcrowding. But that aside, it seems plausible that the Supreme Court might well rule that imprisoning someone for centuries, in addition to being completely impractical and phenomenally expensive, is crueler than simply killing them.  Thus, if capital punishment is unavailable as an alternative to an eternity in prison, whether because no capital crime was committed or because the jurisdiction does not allow capital punishment, then a very long but finite sentence–or at least the possibility of parole–may be constitutionally required.

B. Capital punishment

Of course, executing supers is not exactly a straightforward process a lot of the time. Some of them, like Captain America or Batman, are tough, yeah, but they can be killed through conventional means when it comes right down to it. Some may not be killable at all, like Doomsday (more on him later) or Dr. Manhattan. But what about someone like Wolverine or Superman? They can be killed, but it takes a bit of doing, and in Superman’s case it may not be possible without his cooperation, which seems unlikely. The most common methods of execution don’t seem to work: shooting, impaling, hanging, lethal injection, etc. Decapitation might work for Wolverine (Xavier Protocol Code 0-2-1 mentions this as a possibility) but no one’s tried it, and that just makes the point all the more clear: if we are to insist that capital punishment be administered as “humanely” as possible, i.e. with a minimum of pain and suffering, is it “cruel and unusual” to execute someone that requires a superhuman amount of punishment to kill, especially if we’re not even sure it would work?

Probably. There are serious questions about the constitutionality of lethal injection as being cruel and unusual, and many of the historical means, e.g. decapitation, hanging, breaking on the wheel, crucifixion, drawing and quartering, have all been abandoned if not outlawed under that doctrine. It’s getting to the point that the only execution methods available will just barely kill someone. If we can’t use them on people that they will kill, using them on people that they probably won’t kill would seem to be an obvious case of cruel and unusual punishment.

II. Super punishment

What is to be done then? If anything, this would serve to highlight the need for superheroes: tossing Doomsday into deep space was one of the only viable options in the face of such a threat. But this is, after all, simply an extension of the thesis that society and civilization may need persons who are willing and able to go beyond the bounds of society, in terms of power and/or action, to survive. Some threats simply cannot be dealt with by conventional means.

But even accepting that thesis for the purposes of argument, there are still legal issues to be confronted.

A. Extra-planar & extra-planetary imprisonment

During Marvel’s Civil War event a few years ago, Reed Richards and Tony Stark created a Negative Zone prison to house rebellious super-powered individuals pending their trials. It was viewed as the only viable solution to keeping such individuals incapacitated. Other stories have involved prisons in orbit or on the moon. Is it “cruel and unusual” to imprison people in such a place?

Probably not, so long as conditions in the prison itself were acceptable (and the Negative Zone prison basically seemed to be). The Federal Bureau of Prisons can put people basically wherever it wants, and the only reasons it cannot house inmates outside the territorial boundaries of the United States is practical rather than legal, i.e. it’s hard to get the real estate. Provided that transport to and from the place in question is reliable, there does not seem to be any particular legal reason such a prison could not operate. Indeed, the risks posed by such exotic forms of transportation could well be offset by the risks posed by attempting to house super-powered prisoners in traditional locations.

Simply tossing someone into space, like Superman did to Doomsday, is a little more problematic, because unless the sentence was intended to be permanent–in which case see the discussion in section I–any punishment which amounts to a life sentence is going to be unlawful.

B. Extra-judicial punishment.

Which may actually be the point. A lot of superhero-based justice is meted out entirely outside the legal system. Doomsday was not tried and convicted of anything: Superman simply got rid of him. Which is probably the best thing for everyone, as there are real jurisdictional and competence problems in trying an extra-terrestrial demigod in criminal court. The interplanetary law issues aside, trying any villain capable of single-handedly destroying an entire city seems a bit… presumptuous (and a good subject for a later post!). So there are really good reasons why we might be okay with superheroes simply getting the job done without asking permission first or making sure their legal “t’s” are crossed and “i’s” are dotted.

Which brings us to the doctrine of justiciability: in short, courts don’t like to hear cases in which it cannot possibly issue an enforceable judgment. The main issues which federal courts (and most state courts) view as nonjusticiable are advisory opinions, i.e. asking the court what it thinks it might do without asking it to do anything, collusive suits where the parties conspire to gin up a lawsuit in the absence of an actual controversy, unripeness/mootness, where it is either too early or too late for the court to do anything, and political questions, which are left up to the political branches to resolve.

Superhero-administered punishments raise one obvious justiciability issue: mootness. If Superman has already chucked Doomsday into space… what, exactly, is the Court supposed to do about it? It’s already done. Same for Batman killing the Joker or any other case where the supervillain has already been permanently punished. Aside from not really wanting to disturb the result, the Court couldn’t even if it wanted to. So even if the state actor question works out so that Superman etc. is a state actor, if the “punishment” is a done deal, any case will likely be dismissed as moot.

But the other issue is that United States courts do not initiate legal proceedings. They deal with the issues with which they are confronted. This is not merely limited to addressing the cases that get filed: relevant legal issues which are not raised and briefed by the parties are generally ignored by the courts. Judges sometimes make mention of these issues if they think the parties have missed something, but they will not hand down judgments based on them.

So who then is going to file a lawsuit–and against whom?–because a supervillain has been punished? The ACLU? I mean, they could probably come up with adequate standing without too much difficulty, but they already get enough bad press for representing clients that some people don’t like. Imagine the PR disaster if they decided to file suit against Superman for not following the niceties of the law while saving the world.

That’s just how the legal system works sometimes. When it is convenient for everyone involved to ignore the rules, the rules get ignored. This will be a recurring theme in any discussion of superhero stories, and actually gets a pretty good treatment in Frank Miller’s Batman stories.

III. Conclusion

Normal methods of judicial punishment might actually be unconstitutional when applied to super-powered individuals. But even if they were legal, there are such huge practical problems in dealing with them that it seems likely that the legal system would either not be given the chance to consider the issue or would even turn it down if offered. Society will probably need to decide for itself what it thinks about powerful vigilantes and villains like those in Metropolis and Gotham City. The legal system will probably be there to enforce that decision, but it does not necessarily provide any particular guidance in making it.