The Law of Superheroes

by James Daily

  “a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large[, such as] the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.” 66

  Some of the Court’s decision cuts in favor of mutants: Cities and states aren’t really addressing the problem and there is very little legislation on the subject to indicate mutant political power. However, other aspects cut against mutant rights. Mutation is a “highly variable condition,” and arguably it is “a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary.” 67 And making mutation a suspect class would open a door the Supreme Court explicitly declined to open in Cleburne. Given the Court’s current reluctance to embrace homosexuality as a suspect classification, 68 it’s questionable whether it would do so for mutants. Discrimination on the basis of mutation would thus likely receive only rational basis review and likely survive an Equal Protection challenge.

  Substantive Due Process

  The second argument that might apply to mutant rights, substantive due process, is derived from the Due Process Clauses in the Fourteenth Amendment 69 (“nor shall any State deprive any person of life, liberty, or property, without due process of law”) and Fifth Amendment 70 (“No person shall be…deprived of life, liberty, or property, without due process of law”). While we ordinarily think of due process as being about procedural rights (e.g., the right to a hearing), substantive due process protects rights held to be “fundamental to our scheme of ordered liberty” or “deeply rooted in [American] history and traditions.” 71 An example of such rights that is relevant here are “the rights of ‘discrete and insular minorities’—groups that may face systematic barriers in the political system.” 72 When a law implicates such a right, the courts apply a strict scrutiny standard.

  The courts do not recognize new substantive due process rights lightly. “Recognizing a new liberty right is a momentous step. It takes that right, to a considerable extent, outside the arena of public debate and legislative action.” 73 However,

  [s]ometimes that momentous step must be taken; some fundamental aspects of personhood, dignity, and the like do not vary from State to State, and demand a baseline level of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion. 74

  So the questions are raised: Are mutants a discrete and insular minority? Do they face systematic barriers in the political system? Do anti-mutant laws threaten fundamental aspects of personhood or dignity that demand a baseline level of protection? We think the answer to all of these questions is yes. Although anti-mutant discrimination is a relatively new phenomenon, it has existed essentially as long as mutants have. Such discrimination is pervasive, sometimes violent (remember Pixie?), and often backed by the authority of the state. In the case of Genosha (an island off the coast of Africa and thus admittedly not part of the United States) it has even lead to the wholesale enslavement of mutants. 75 This discrimination goes to the mutants’ very humanity, and there can hardly be a more fundamental aspect of personhood or dignity than that.

  Anti-Mutant Hate Crimes

  If mutant rights were embraced by society, could the federal or state governments pass hate crime laws that give mutants additional protections? Hate crime laws take many forms, but generally they enhance the penalty for an existing crime if the victim was chosen because of his or her race or other protected status. These kinds of laws are constitutional, as they do not punish a person for having a certain belief. Instead, the laws punish a motivation for a crime in much the same way that punishment may be enhanced when a crime was motivated by financial gain. 76 As the Supreme Court explained,

  “bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases.” 77

  However, a law that targeted bias-motivated expression, such as a law prohibiting anti-mutant signs or slogans, would not be constitutional. 78 The First Amendment protects such expression, loathsome though it may be. States and cities may criminalize hate crimes but not hate speech.

  The federal government is another matter altogether. As discussed, the federal government’s powers are constrained by the Constitution, and while the Commerce Clause is broad, it does have limits. The Supreme Court has held that part of the Violence Against Women Act of 1994 79 that prohibited “crimes of violence motivated by gender” was unconstitutional because it exceeded the reach of the Commerce Clause. 80 These limitations make a federal anti-mutant-hate-crime law unlikely.

  The Consequences of Mutant Rights

  Mutants may be protected from discrimination by substantive due process, but legal protection can be a double-edged sword for organizations that cater to mutants exclusively or that would like to preferentially hire people with superpowers. An example of the former would be the Xavier Institute, which is a school for, and only for, young mutants. 81 An example of the latter would be superpowered law enforcement organizations like The Fifty State Initiative and the Department of Extranormal Operations.

  If the Xavier Institute is a private school that takes no public funding, then it has more leeway to discriminate, albeit with potential repercussions such as loss of its tax-exempt status. 82 If the Institute takes public funding, however, then it will generally be required not to discriminate:

  The private school that closes its doors to defined groups of students on the basis of constitutionally suspect criteria manifests, by its own actions, that its educational processes are based on private belief that segregation is desirable in education. There is no reason to discriminate against students for reasons wholly unrelated to individual merit unless the artificial barriers are considered an essential part of the educational message to be communicated to the students who are admitted. Such private bias is not barred by the Constitution, nor does it invoke any sanction of laws. But neither can it call on the Constitution for material aid from the State. 83

  It could be argued that mutant status is related to individual merit, and that the special curriculum of the Xavier Institute would be of little use to a nonmutant student, but that argument cuts both ways. If it is permissible for the Xavier Institute to discriminate in favor of mutants because it is a school for special students, then it would also be permissible for a regular school to discriminate against mutants because it is a school for typical students.

  A more likely result is that the Xavier Institute would have to rely on private funding or open its doors to nonmutant children. Given society’s attitude towards mutants, few parents would send their nonmutant children there, especially since much of the curriculum would be of no use to them (e.g., Northstar’s flying class) and the super-genius mutants would probably wreck the grading curve for the normal classes.

  S.H.I.E.L.D. and the DC Universe’s Department of Extranormal Operations (DEO) are a different story altogether. Unlike most superhero groups, S.H.I.E.L.D. is often written as a part of the United States government, and the DEO is a federal agency. Groups like the X-Men and the various instantiations of the Justice League of America are presumably private organizations that do not even employ their members, so they are free to discriminate as they wish. Private clubs can even avoid the requirements of the Americans with Disabilities Act. 84 But if S.H.I.E.L.D. or the DEO (and the United States government) want to avoid a discrimination suit, then they will have to take some precautions.

  The federal government has specific rules that it m
ust follow when employing people. These rules are part of the civil service or “merit system.” The first principle is

  Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. 85

  As you can see, S.H.I.E.L.D. has room to prefer those with superpowers where such powers are relevant to the job (i.e., a “bona fide occupational qualification”). The problem is that superhuman abilities are not actually a requirement of being an agent of S.H.I.E.L.D. Numerous S.H.I.E.L.D. agents, although plainly very skilled, are not superhuman, at least not inherently (e.g., Nick Fury, Tony Stark, Clay Quartermain). The DEO has the same problem. This may make it difficult for S.H.I.E.L.D. or the DEO to preferentially hire people with superpowers or other unique abilities except when a position requires a particular ability (e.g., the S.H.I.E.L.D. Psi-Division).

  There is an outlet, though. Not all civil service positions are covered by the merit system: “‘covered position’…does not include any position which is…excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.” 86 As long as the President signs off on a given position before a new agent is brought on board, S.H.I.E.L.D. is free to hire whomever it wishes.

  Supervillain Sentencing and

  the Eighth Amendment

  What if the state attempted to imprison an immortal supervillain for life? Or tried to execute a nigh-invulnerable supervillain? And what about special supervillain prisons? Finally, could a supervillain’s powers be forcibly removed? Besides the practical problems involved with imprisoning an immortal, all-powerful villain like, say, Galactus, there are also constitutional issues to consider. The Eighth Amendment of the Constitution prohibits “cruel and unusual punishment.” In the examples above, how would the courts rule?

  Immortal Supervillains and Life Imprisonment

  Life imprisonment appears to have emerged in the nineteenth century as an alternative to the death penalty. The Supreme Court formally recognized it as constitutional in 1974. 87 For most people, a sentence of life without parole is really just a sentence of a few decades. The issue is not limited simply to life without parole either: courts can and do hand down consecutive life sentences. A defendant convicted of multiple serious crimes that do not reach the level in which life without parole is permitted may still be sentenced to enough prison time to guarantee that he’ll never be released, e.g., six twenty-year terms to be served consecutively. He’d have to come up for and be paroled for each one in turn, which amounts to a life sentence.

  But what about an immortal (or at least very long-lived) supervillain like Apocalypse? Even a very young man who gets life without parole will rarely see more than five decades in prison. Which is bad, but it’s an entirely different kettle of fish from seeing fifty decades or five hundred decades. Is this cruel and unusual punishment?

  It may very well be, especially given the ongoing debate about the practice of incarceration in general. There have been cases in which judges have ordered the release of large numbers of convicts due to prison conditions, especially overcrowding. 88 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 him or her. 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.

  Nigh-Invulnerable Characters and the Death Penalty

  While many superpowered characters are tough, most can be killed through conventional means when it comes right down to it. However, others may either be unkillable (e.g., Doomsday, Dr. Manhattan) or extremely difficult to kill (e.g., Wolverine). In the case of a character with a healing factor like Wolverine’s, none of the most common modern methods of execution would work: shooting, hanging, lethal injection, electrocution, or the gas chamber. Decapitation might work (Xavier Protocol Code 0-2-1 mentions this as a possibility for Wolverine), but no one’s tried it.

  This uncertainty is problematic, because while the Supreme Court has repeatedly upheld the constitutionality of the death penalty and has never specifically invalidated a method of punishment on the grounds that it was cruel and unusual, 89 it has stated “[p]unishments are cruel when they involve torture or a lingering death.” 90 Decapitation has been specifically cited as a form of execution that is likely unconstitutional for being too painful. 91 Another hypothetical example is “a series of abortive attempts at electrocution,” which would present an “objectively intolerable risk of harm.” 92 Since we don’t know if a given method of execution would actually work for a regenerating or nigh-invulnerable supervillain, trial and error would be the only way to determine an effective method. Since regenerating characters are often unaffected by drugs, it may not be possible to mitigate pain. It seems likely, then, that the courts would rule that trying to carry out the death penalty would be unconstitutional for those who are unkillable or almost unkillable.

  Letting Wolverine know you’re coming is not part of the plan. Warren Ellis et al., London Burning, in EXCALIBUR 100 (Marvel Comics August 1996).

  Supervillain Prisons

  Many supervillains could easily break out of a normal prison, so many comic books have developed special methods of incarceration to handle people who can fly or walk through walls. One example is the Marvel Universe’s Negative Zone, which housed a prison during the Marvel Civil War. Although conditions at the Negative Zone prison were similar to a normal prison, the Zone itself seemed to negatively affect some people’s emotions and mental health. Is it cruel and unusual to imprison people in such a place?

  In short, probably not. Even regular prisons are seriously depressing, so it’s already going to be difficult to prove that a prison in the Negative Zone 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. 93

  Furthermore, to be “sufficiently serious” to constitute cruel and unusual punishment, “a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.” 94 Minimal is the right word; 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.” 95 This is a very low bar.

  Not Mr. Fantastic’s finest hour. J. Michael Straczynski, Stan Lee et al., Some Words Can Never Be Taken Back, in FANTASTIC FOUR (VOL. 1) 540 (Marvel Comics November 2006).

  The emotional effects of the Negative Zone are not really part of the punishment but rather 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). Offering the inmates adequate living conditions and mental health care to offset the effects of the Negative Zone could probably eliminate a charge of deliberate indifference. Finally, it would be difficult to argue that imprisonment in the Negative Zone denies the minimum c
ivilized measure of life’s necessities. “The Constitution does not mandate comfortable prisons,” as the Farmer court noted, 96 only humane ones, and the Negative Zone is probably not bad enough to run afoul of the Eighth Amendment under the circumstances.

  Forcible Removal of Superpowers

  The DC supervillain Timothy Karnes had the power to transform into a demonic superbeing (Sabbac) by uttering a word of power. After being caught by Captain Marvel and transformed back into his human form, Karnes’s larynx was surgically removed in order to prevent him from turning back into Sabbac. Is this cruel and unusual?

  A real-world parallel is chemical castration, where convicted sex offenders, usually pedophiles, are treated with a hormonal drug routinely used as a contraceptive in women. While it has four side effects in women, in men the drug results in a massively reduced sex drive.

  About a dozen states use chemical castration in at least some cases, and there does not appear to have been a successful challenge on constitutional grounds. This may in part be due to the fact that a significant percentage of the offenders who are given the treatment volunteer for it, as it offers a way of controlling their urges. If the person being sentenced does not object, it’s hard for anyone else to come up with standing for a lawsuit. 97 Either way, despite health and civil rights concerns, this appears to be a viable sentence in the United States legal system.