Mailbag for June 27, 2011

Today’s mailbag is a grab bag of questions from astute reader Jessica.  We have questions about rogue superheroes, more on the Negative Zone and the Eighth Amendment, and personal jurisdiction and The Dark Knight.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Rogue Superheroes and RICO

For the first question, Jessica asks “[A]re the X-Men or the Avengers complicit or in any way culpable if [Wolverine kills someone or uses excessive force] while out with a team, given that they know he does this?”

This is a great question and one we’ve been thinking about for a while.  We’ve talked about how RICO statutes could be used against supervillain organizations but we haven’t considered how the laws might apply to a superhero organization with rogue members.

First, a brief summary of RICO (Racketeer Influenced and Corrupt Organizations) laws.   The original RICO law is the federal version, 18 USC 1961-1968, although many states have passed their own similar laws.  The general pattern of the law is that a person who is a member of an organization that has committed any two of a list of 35 crimes within a 10 year period can be charged with racketeering, which is a serious felony.  To be charged with racketeering the member must have done at least one of the following (paraphrased from 18 USC 1962):

• have invested income derived from racketeering activity in an organization engaged in or affecting interstate or foreign commerce
• acquired or maintained an interest or control in such an organization through a pattern of racketeering activity
• conducted or participated in the affairs of such an organization, directly or indirectly, through a pattern of racketeering activity
• or conspired to do any of the first three

It’s important to note the phrases “derived from racketeering activity” and “through a pattern of racketeering activity.”  Merely investing income derived from an organization doesn’t count: it has to have come from racketeering activity (e.g. counterfeiting, theft, drug trafficking, securities fraud).  Similarly, merely controlling or participating in an organization doesn’t count: the control or participation has to be accomplished through a pattern of racketeering activity (e.g. extortion, bribery, murder).  These requirements prevent innocent members of an organization from getting swept up in a RICO action.

The practical upshot of this is that even if a member of an organization (Wolverine, for example) commits the required crimes (e.g. murder), the other X-Men may not be criminally liable under RICO if their own activities (investment, control, or participation) were unrelated to racketeering activity.  It’s not like Professor X routinely asks Wolverine to murder people or the other X-Men routinely assist Wolverine in committing murder.  Perhaps the biggest issue is if any of Wolverine’s unlawful activities brought money into the organization.  X-Men who invested those ill-gotten gains could find themselves facing charges (and a civil suit) under RICO.

Basically, RICO doesn’t work very well if applied to a fundamentally law-abiding organization, and this is by design.

II.  The Negative Zone and the Eighth Amendment Revisited

The second question is about the emotional effects of the Negative Zone: “Would [the effects] be a factor in determining the conditions for the purposes of Eighth Amendment compliance?”  In other words, does imprisoning someone in the Negative Zone violate the Eighth Amendment because of the Zone’s effects on people’s emotions and mental health?

In short, we think the answer is no.  The fact is that even regular prisons are seriously depressing, so it’s already going to be difficult to prove that a prison in the NZ is worse enough to be considered cruel or unusual punishment.  As the Supreme Court has said:

“The unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment. We have said that among unnecessary and wanton inflictions of pain are those that are totally without penological justification. In making this determination in the context of prison conditions, we must ascertain whether the officials involved acted with deliberate indifference to the inmates’ health or safety.”  Hope v. Pelzer, 536 U.S. 730, 737-38 (2002) (holding that handcuffing an inmate to a hitching post outdoors for several hours with inadequate water and restroom breaks violated the Eighth Amendment) (quotations and citations omitted).

Furthermore, “a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.”  Farmer v. Brennan, 511 U.S. 825, 834 (1994).  Prison officials “must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.”  Id. at 833.

In the Negative Zone case the emotional effects are not really part of the punishment but just a side effect of the place.  Because the Negative Zone is the only suitable prison for many supervillains, the side effect is arguably necessary.  Further, the side effects are not controlled or intentionally inflicted by anyone.  Thus, the effects are not inflicted wantonly (i.e. deliberately and unprovoked).  A charge of deliberate indifference could probably be eliminated by offering the inmates adequate living conditions and mental health care to offset the effects of the Negative Zone.  Finally, it would be difficult to argue that imprisonment in the Negative Zone denies the minimum civilized measure of life’s necessities.  “The Constitution does not mandate comfortable prisons,” as the Farmer court noted, only humane ones, and the Negative Zone is probably not bad enough to run afoul of the Eighth Amendment under the circumstances.

III. The Dark Knight and Forcible Personal Jurisdiction

The last question is about The Dark Knight (spoilers if you haven’t seen the movie yet, which you really should).

“In the Dark Knight, a Chinese national commits crimes on American soil, or at least against American citizens (even if they were all money-related crimes), and then returns to China knowing he won’t be extradited.  Batman follows him, kidnaps him, and dumps him back in America in police custody.  What are the basic legal repercussions of this, given Batman’s pseudo-status with the police?  What if it had been a completely free agent instead of Batman?”

As it turns out, the Chinese national is out of luck, assuming the prosecutor wants to file charges against him.  The Supreme Court has consistently held that “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction.”  Frisbie v. Collins, 342 U.S. 519, 522 (1952).  This is true even if the abductors were government agents (in the Frisbie case the defendant Collins was allegedly abducted by police officers and taken to another state to be tried).  This rule, known as the Ker-Frisbie doctrine, has been upheld quite recently at the circuit level.  See, e.g., United States v. Arbane, 446 F.3d 1223 (11th Cir. 2006).

However, the abductor may still be liable under the Federal Kidnapping Act, 18 USC 1201.  And if the abductor were a state actor (or at least seen to be one politically), then China would likely take a very dim view of it, to say the least.

That’s all for today’s mailbag.  Keep your questions coming in!