We generally try to avoid evaluating the merits as such of the works we analyze, trying to stick mostly to the legal side of things and letting readers come to their own conclusions about the works as a whole. But with this latest episode of Torchwood: Miracle Day, we’ve gone from “There are definitely some problems here” territory straight into “None of this makes any damned sense” territory. Still, we soldier on. The show continues to introduce—and usually botch—new legal issues, and we, your tireless writers, give them a look.
Spoilers inside, as always.
This time, we’re really just looking at one big issue: categorization. This is… a steaming mess.
First, they got the categorization scheme wrong. The schemes as presented are 1) people who ought to be dead; 2) people with chronic illnesses; and 3) people who are uninjured. Well what about people with temporary illnesses? There’s just no category for them. Or people with chronic but non-fatal conditions? They’re category two, but last time I checked, asthma and psoriasis aren’t terribly likely to kill anyone. The biggest objection to the scheme by the characters is that it lets the government play God, deciding who is dead and who isn’t. And because category two is so sweeping, they’re entirely correct. The categories should be: 1) people who manifestly, obviously, ought to be dead; 2) people who absent the Miracle might be dead, but might not be, and 3) everyone else. That way we capture the epistemic limitations of deciding who ought to be dead by leaving that category solely for those people for whom there is no doubt, i.e. they fit the current legal definition of death but are still alive anyway. We also keep people with “normal” illnesses who are either going to get better or clearly wouldn’t have died even before the Miracle in category one. Much, much better all around.
But second, it seems that the categorization legislation and bureaucracy seems to have sprung into existence, fully formed, in the space of about half a day. We had never heard mention of categorization before this. Yet the day before categorization is slated to go into effect, Esther can access forms for the categorization process. This is not how administrative law works, and even if PhiCorp had been preparing for years, the government hasn’t, so there’s really no way they could have set up camps, let alone hire bureaucrats, on that kind of notice. Even six months would be unrealistically fast. Most people think that the maddening part of bureaucracy is red tape, and they’re right, but red tape, as such, exists because bureaucracies take so long to get anything done and have incredible institutional inertia. They can’t react as fast as they do in this episode, and if they could, they wouldn’t have red tape.
Third, it seems likely that the categorization scheme, as proposed, is completely unconstitutional. Even if we adopt the more rational categories proposed above, we’re still left with the fact that we’re treating people who are manifestly alive as if they had no civil rights. The Fifth and Fourteenth Amendments won’t permit that. Essentially, no one can be put into category one without some kind of due process, and a doctor’s ad hoc determination isn’t going to be enough. This would also mean that pronouncing someone dead wouldn’t be a purely functionary determination. It’s discretionary. Due process would probably involve some kind of adversarial proceeding, with the state seeking a determination that the person “ought to be” dead. This could be pretty quick, but it would need to be more official than a resident not finding a pulse and sticking you with a red clothespin.
Fourth, it’s possible that the categorization system could be implemented largely as described—with the above modifications—constitutional law be damned. Civil rights depend significantly on the courts for their enforcement, and civil rights litigation can often take quite a while. Much of it happens in the context of criminal law, and much of the rest of it has to do with single events, not ongoing in fractions. What’s being proposed here is a massive, systemic, overwhelming change to society. The Court might not be able to stand in the way of that, particularly if categorization is something that both the Legislative and Executive branches really want. The Court eventually bowed to political pressure in permitting the New Deal to go forward, and it’s plausible that they could bow to necessity and do the same thing here. As the law is significantly what they say it is, a ruling that categorization is constitutional does not seem implausible.
As far as putting people in camps goes… it wouldn’t be the first time.
Burning category one people “alive” is distinctly unpleasant… but might not actually be illegal. If the Supreme Court ruled that categorization was constitutional, disposing of category one individuals might actually be permissible. Repugnant, perhaps, but there isn’t much about this situation that’s awesome. The real question is: why? We’ve spent two episodes being teased with what PhiCorp is up to, and this week they suggested 1) using these people to develop new diseases to expand the demand for drugs, and 2) vivisection and human experimentation. Neither of those are particularly plausible, but hey, at least they have the benefit of implying some benefit for someone. But Dachau-style ovens? Really? Who benefits there? I mean, society potentially, but other than looking crazy prepared, how does this benefit PhiCorp at all? It just doesn’t figure.
That’s it for this week. Which is good, because the show increasingly isn’t. But never fear: We’ll grit our teeth and be back at you with another post in a week or so.
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