The Surrogates is a limited-run 2005-06 comic series about which we did two posts (1, 2) late last year, and which was made into a movie starring Bruce Willis in 2010.
This time we’re writing about the prequel graphic novel, The Surrogates: Flesh and Bone. The entire series is available in hardcover. Flesh and Bone is set fifteen years before the main series and deals with a sensational homicide case: a minor operating his father’s surrogate unit beats a homeless man to death, more or less just to watch him die. The killing has all the hallmarks of a major news event: the accused is white, the victim black; the accused is rich, the victim poor; the accused is operating a surrogate, the victim is a “boner,” the kid’s slang for someone who lives his life in the titular “flesh and bone”.
Like the comic series, Flesh and Bone includes various miscellany in the form of advertising materials, news stories, and scholarly articles, all about surrogates and their impact on the world. One of these involves a fictional Supreme Court case where the court ruled that employers may make owning a surrogate a condition of employment. In this post, we’ll look at both the homicide issue and that labor issue, which we touched on last year.
I. The Ignorance Defense to Homicide
The homicide case winds up being pretty straightforward in terms of the investigation. Because surrogates are all networked and registered, the police can get a warrant to figure out who owns which surrogate pretty easily. Indeed, in the movie they’re shown getting warrants from federal district court within seconds. So when the police find the victim, it doesn’t take them long to track down the owner of the surrogate unit involved in the killing. From there, it doesn’t take long to figure out that it was the surrogate owner’s son, not the owner himself, who had been operating the unit during the homicide. Open and shut, right?
Well. . . no. The family’s lawyer suggests a rather novel defense: ignorance. The boys had intended to commit some good, old fashioned vandalism. They had no idea that poor man was an actual person! A lot of the plot centers on finding evidence to suggest that this wasn’t true, but the question for us is whether it would be a good defense to a homicide charge if it had been.
This gets a little complicated and actually requires some conjecture. First, we start with the definition of murder. Murder requires the deliberate, premeditated killing of another person. Defense counsel’s theory in this case is that because his client didn’t know that the entity being attacked was a person, not a surrogate, that the intent element is missing. Here there might actually be a factual problem. The wider stories suggest that damaged surrogates look like broken robots, not injured people. So there’s a real question about whether any jury would believe that a person operating a surrogate wouldn’t be able to tell the difference between a real person and a surrogate once the attack had commenced. But this issue is never really addressed by the authors, and we’re not concerned with plot consistency as much as legal analysis, so we’ll let that by. Assuming that’s a plausible reading of the facts of the story, then yes, there’s a problem.
Or is there? There’s more than one way to get at murder here. What about felony murder, i.e., the rule whereby any death that occurs during the course of the commission of a felony is treated as murder? That’s a possibility. But we have to rule out assault as the predicate felony. It turns out that there might actually be grounds for an assault charge here, even if the boy thought he was attacking a surrogate, because in some jurisdictions assault can include intentionally causing reasonable apprehension of imminent bodily harm. It is possible that someone operating a surrogate would, despite knowing that they are “invulnerable”, still flinch at an attack, which could qualify as an assault. But assault or battery can never ground a felony murder charge, because assault/battery are lesser-included offenses to homicide. Otherwise, every deliberate killing would be murder, because every deliberate killing stems from an underlying assault.
That aside though, it turns out that deliberately damaging other people’s property is classified as a felony in some states, particularly where the property is expensive. And while some states have limited the felonies that can ground a felony murder charge to a specific list, Georgia still seems to let any felony count. So even if the prosecutor had no evidence that the attacker believed the victim to be a real person, he has more than ample evidence to charge the boy with a felony, i.e., “criminal damage to property in the second degree,” and use that to base a felony murder charge on.
But even if the intent requirement of murder could be defeated by the defendant’s ignorance, there’s still involuntary manslaughter or negligent homicide. The kid should have known that he was beating up a real person, not a surrogate, and his negligence led to the victim’s death. Not quite as serious a crime as intentional murder, but exactly “out on probation” material, either.
II. Mandatory Surrogacy
Then there’s the issue of whether employers may require employees to provide their own surrogates. The story mentions a fictional Supreme Court case that ruled that they can. Under current law, this is not as much of a stretch as it might seem at first glance. Employers are permitted to require employees to provide certain things on their own, like work clothes, sunglasses, and even cars. Certain things like clothes, which the employee was probably going to have to buy anyway, which aren’t terribly expensive, and which have plenty of non-work utility, are uncontroversial and not that big of a deal. Dress codes are a basic fact of the workplace. Now uniforms are generally paid for by employers, but (1) these have very little non-work utility, (2) the employer has an interest in making sure uniforms are, in fact, uniform, and (3) the employee probably has to return the uniforms when they leave the company, if they’re allowed to take them home at all. Abercrombie and Fitch were hit with a class action lawsuit about the alleged requirement that employees purchase clothes from A&F. The company settled for $2.2 million.
But consider cars. Employers are permitted to require that employees drive their own cars on company business. They’re not even required to reimburse employees for mileage. A federal judge recently decertified a class action by Domino’s delivery drivers about related issues. So why shouldn’t employers be permitted to require the use of surrogates? Just like with vehicles, employers that don’t provide any kind of compensation for this requirement may find it difficult to attract and retain quality employees, but as long as the employer doesn’t mind rust buckets, they’ll find people willing to deal with this.
But if the employer wants to exert significant control over what their employees’ surrogates look like, they will almost certainly be required to pay for them. Like with clothing, employers may impose very general guidelines, e.g., “professional dress” or “business casual,” particular choices are left up to the employee. So permitting employers to require that employees use a surrogate is not that ambitious a claim. But permitting a requirement for a top-end model, or one that looks a certain way, sounds more like a uniform. Troubles there seem more likely than pizza shops requiring that their drivers have Mercedes, but it’s the same kind of thing. A minimum wage employer that required attractive, fully-functional models without providing any compensation for them may find that they simply don’t have any employees.
I think it would be far more likely that employers in such situations would simply field company surrogates that employees could operate while they worked. No discrimination issues, no labor-law issues—employers absolutely can require employees to use the equipment they provide—and far greater control over the quality and uniformity of their workers’ units. Expensive, to be sure, but in the long run it might well be cheaper than dealing with employees’ non-standard units. Economies of scale for purchasing and maintenance, unified insurance policies, etc. Indeed, one would think that a world which had perfected surrogates would see far more in the way of remote operation of all sorts of machines. Why have your employees run surrogates if they can operate a fryer and grill with waldos?
III. Conclusion
So as to the homicide issue, while the defense’s argument has some initial plausibility, there are two problems. First, it doesn’t seem consistent with the way surrogates are portrayed. You hit one, and you get sparks and parts, not blood, so as soon as the attacker saw blood on the victim, that would seem to demolish the ignorance defense. But second, even ignoring the consistency issues, deliberately setting out to damage a surrogate would probably be a felony in its own right, one that would not merge into homicide, and would thus serve as an adequate basis for felony murder. At a minimum, the defendant could be charged with involuntary manslaughter.
But the suggestion that a future Supreme Court might permit employers to require employees to provide their own surrogates as a condition of employment does not seem as far-fetched as it may sound. It’s not that far a stretch from some existing labor practices. Things get a little dicier when we talk about requiring units of a certain type or quality, but an employer that really cared about such things would probably find it easier cheaper to just maintain a bank of company surrogates, so it’s likely that a lot of the more egregious situations would resolve themselves that way. And an employer that doesn’t pay enough for their employees to afford surrogates but requires them anyway might well find that they don’t have any employees. We already seem some borderline cases with cars there, but it’s not a terrible widespread problem. As requiring surrogates would likely affect far more people than requiring cars—most employers don’t care how you get to work as long as you get there on time—that issue seems like it would probably be dealt with one way or the other.
Really though, Flesh and Bone is a great addition to the Surrogates corpus. If you liked the original, you’ll like the prequel.
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