We’re not talking about The Joker in general here, but rather the [amazon_link id=”1401215815″ target=”_blank” container=”” container_class=”” ]2008 graphic novel[/amazon_link] by Brian Azzarello and Lee Bermejo. It’s got two legal issues up for discussion, one major, one minor. First, there’s the issue of a specific outcome of an insanity proceeding. Second, there’s the matter of what appears to be divorce papers. We’ll discuss each in turn.
I. Criminal Insanity and Parole
The premise of the story is that the Joker is being released from Arkham Asylum because he’s convinced his minders that he’s actually sane. This shouldn’t come as any surprise to our long-term readers, as we concluded back in January 2011 that the Joker probably isn’t insane, and then that he’s probably competent to stand trial. But we’ve still got a problem here. The book suggests that (1) the Joker was involuntarily committed because he was deemed insane and (2) that he isn’t insane anymore, so he’s being set free.
A. Civil Commitment
We need to know more about the facts and the law to know if this is the way it would actually work. If he was simply committed in the absence of criminal charges, this would be called “involuntary commitment,” “civil commitment,” “civil confinement,” or any number of related terms for the process by which the state puts people deemed dangerous to themselves or others in mental or support facilities. Exactly how this works varies somewhat from state to state. Some states will let basically anyone who suspects someone of being a danger to petition for an evaluation of their mental health. Others restrict this to “interested parties,” and D.C. restricts that to police officers, physicians, and mental health professionals. Regardless, it would involve convincing a judge to order the mental evaluation of the subject and for the evaluating psychiatrist to conclude that the person was, indeed, in need of confinement. The standard for where that need arises also varies somewhat.
But the important thing is that the “danger to one’s self or others” standard doesn’t generally encompass “is a murdering bastard”. It’s most often used in situations where the person doesn’t understand what they’re doing, can’t keep themselves safe, and might unintentionally engage in dangerous conduct, the implications of which they can’t understand. So having the tendency to light fires because one has a diagnosed, unrestrainable pyromania or because one simply doesn’t understand the danger might be grounds for commitment, but being a dedicated and intentional arsonist who is otherwise capable of taking care of himself wouldn’t. Otherwise the police would simply go around civilly committing anyone whom a psychiatrist believed was likely to commit a crime. That’s not how that works.
B. Criminal Commitment
So the conclusion is that the Joker was probably committed due to some sort of criminal proceeding. The characters certainly seem to imply that he was in Arkham as the result of a prosecution—they talk about the Joker as if he were serving a prison sentence, not as if he had gotten caught up in the mental health system—though it isn’t spelled out either way. But there are several ways in which he might have ended up in Arkham via the criminal justice system.
First, he could have been deemed incompetent to stand trial. Again, we discussed that last year, and this is very unlikely. To be deemed incompetent, a person must have an almost complete lack of understanding of what’s going on around them to the point that they cannot provide assistance to their defense attorneys. This is a very high bar to meet, and the Joker doesn’t seem to do it. He’s in full possession of his faculties, he’s just evil. But either way, this isn’t how that works. A criminal defendant deemed incompetent doesn’t have his charges dismissed. He’s just kept in a state facility until such time as he is deemed competent. So if this is what had happened, rather than being released, the Joker would just be moved to the county jail and his prosecution would finally start. So that’s not it.
Second, he could have been found “guilty but mentally ill.” About twenty states permit this plea or verdict. Essentially, rather than being acquitted, the defendant is found guilty and in need of mental health services. They are turned over to the prison system as normal, but they are also supposed to receive additional mental health services. In practice, they frequently don’t, as such services are expensive and prisons everywhere are overcrowded and under-funded. But the upshot is that a defendant found GBMI will only be released if they both serve their sentence and are found mentally healthy. If they serve their sentence but are mentally ill, they’ll be kept until such time as they’re found to be healthy. But if they’re found to be healthy and have time left to serve, they stay there until they serve their time as normal. This doesn’t seem to be a particularly likely option either, because if the prosecution has enough evidence to get a GBMI result to stick, he’d probably have a solid few centuries of prison time left to serve.
This leaves us with the third option, an acquittal by reason of insanity. We think this is unlikely—we also think that the GBMI result is unlikely—because the Joker probably doesn’t meet the definition of “insanity” here. He understands that his actions are wrong and he understands their consequences. But the story, like all Batman stories these days, assumes that the Joker is in Arkham because he’s insane, so we’ll just have to go with it. If a person is acquitted by reason of insanity, they’re generally confined until such time as they’re deemed to be mentally healthy. Here, apparently, he’s convinced his minders that he’s sane, and he’s immediately let go. This seems somewhat implausible, as he doesn’t seem any different than he normally is. The Joker never really seems to meet the legal definition, so why he should be committed before and released now with no perceptible change in behavior doesn’t seem to make a lot of sense. But as it’s the only legally likely result, we’re going to have to go with that.
So, for this story to work, the Joker must have been charged with a crime, pleaded not guilty, then been tried and acquitted by reason of insanity. The other main possibilities either wind up with him never being committed or never getting out.
II. The Divorce Papers
One of the characters is apparently in the midst of a divorce. At one point he’s served papers which read “Divorce Document. This is a divorce document that states that Johnny is being divorced by his wife and that he will not be able to visit his kids.” There’s a signature line for the wife with an indication that the wife’s attorney has waived his signature. It then reads “I hereby agree to the terms of this Divorce and will abide by them according to Gotham City and U.S. Government Law.” Then there’s a signature line for Johnny. At the bottom, it reads “Official Gotham City Document.”
That’s… not how that works. Any of it, really. “Divorce documents” are basically pleadings in civil cases. They’re litigation. Where’s the identification of the parties and the court? And they aren’t “official city documents,” they’re part of the public record in a court proceeding, and they’re drafted by the parties or their attorneys. Further, there is no federal divorce law. Family law is entirely state law. So the whole thing is nonsense. The artist would have been better off just titling the document “Divorce Decree” and going with lorem ipsum for the rest of it. This is one of those places where it’s better just not to try.
III. Conclusion
So it seems that for the story to work at all, the Joker needs to have been acquitted of criminal charges by reason of insanity. But the divorce papers don’t work at all. Should have just punted on that one.
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