Tagged: Cruel and Unusual Punishment

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #390

MARIA HILL’S CONSTANT-TUTIONAL VIOLATIONS

For a place that has Matt Murdock, Jennifer Walters, Franklin Nelson, Jeryn Hogarth, Bernadette Rosenthal, Kristen McDuffie, Blake Tower, Rosalind Sharpe, Isaiah Ross, Holden Holliway, Emerson Bale, Dennis Bukowski, Grace Powell, Matt Rocks, Connie Ferrari, Justin Baldwin, Jason Sloan – Okay, >>gasp pant<< let me catch my breath here – Ebenezer Wallaby, Maria Alvarez, Maxine Lavender, William Hao, Nelson Mandella, and even some guy named Robert Ingersol (no relation); I can’t understand why the Marvel Universe doesn’t have any lawyers in it.

Now, I know you may think all of those people – and several others, I didn’t mention for fear of really padding my word count – are lawyers. Marvel may even think they’re lawyers. Trust me they’re not. Based on what I saw in Captain America: Sam Wilson #9, no one in the Marvel Universe would know what to do in a bar, let alone in a bar exam.

It’s like this. Maria Hill, Director of S.H.I.E.L.D., had Cosmic Cube fragments which her superiors ordered her to destroy. She didn’t. Instead she used their reality-altering power to create a super villain gulag that looked like a small American town called Pleasant Hill. She wiped the memories of several super villains so that they believed they were normal people who lived in Pleasant Hill. It was a Norman The Rock-well painting.

Several teams of Avengers found out about Pleasant Hill and went there to shut it down. At the same time, all the inmates dirtied their newly washed brains and revolted. So all hell broke loose.

Meanwhile, the Cosmic Cube fragments coalesced into a sentient being which took on the form of a little girl who left Pleasant Hill and was loose in the world. And did I happen to mention criminal mastermind and terrorist Baron Zemo had escaped and was also loose in the world?

To quote Joe Higgins, the Dodge Sheriff, Maria Hill was, “in a heap o’ trouble.”

Except that she wasn’t.

When Hill was confronted by some sort of informal Avengers tribunal composed of Steve Rogers, Sam Wilson, Rogue, Tony Stark, and The Vision; Hill freely admitted Pleasant Hill violated the Eighth Amendment ban against cruel and unusual punishment. Then she pled her case. She argued she shouldn’t be arrested and tried as that would make Pleasant Hill and the fact that there was a sentient Comic Cube wandering around as a little girl public knowledge. So they had to keep the whole Pleasant Hill debacle quiet.

Which makes a certain amount of sense except for two things; 1) it makes no damn sense at all and 2) we’re talking about S.H.I.E.L.D., a shadowy super spy organization. As a shadowy super spy organization in good standing, S.H.I.E.L.D. wouldn’t arrest or try Maria Hill. It would black site her. Unless it decided to terminate her employment. With extreme prejudice.

Even worse, however, was Maria Hill’s second line of defense, what happens if the lawyers for the Pleasant Hill inmates find out about the cruel and unusual punishment that went on there? “I’ll tell you – Every single one of them – the mass murderers, the cosmic-level threats, the ones with poor personal hygiene – they will all go free.” To which Rogue responded, “Damn it, she’s right,” and the rest of the Avengers tribunal concurred.

Proving, as I said before, that there are no lawyers in the Marvel Universe.

If there were, then one of them – probably more than one, but at least one of them – would have pointed out the fatal flaw in Maria Hill’s argument. That’s it’s complete and utter taurus turds.

Want to know what happens when a court rules a prison is subjecting its prisoners to cruel and unusual punishment? It makes the prison stop doing whatever it was doing that was cruelly and unusually punishing. But it doesn’t make the prison release all the cruelly and unusually punished.

Prisoners are in prisons because they’ve been convicted of crimes. They had their due process. Now the government has the right to imprison them. That doesn’t change just because a prison may have been inflicting improper punishment. The government still has the right to imprison them, just in a different way.

But don’t take my word for it. Look at some history. (Yes, summer school history class. Don’t worry, I’ll keep it short.)

Waaay back in 1972, the Supreme Court ruled the death penalty was cruel and unusual punishment. When it did, it didn’t order the prisons to release all the murderers who were on death row. It just had the prisons transfer them out of death row and into general population. Prisoners who were subjected to said cruel and unusual punishment aren’t automatically freed.

Maria Hill may have been an interesting character once. She’s not anymore. She’s become one-dimensional, strident, extremist, and, quite frankly, boring. And I’d really like to see her disappear forever.

The last thing I want to see is for her to continue on exactly as before. No, wait, that’s the second-to-last thing I want to see. The last thing I want to see is a spin-off series starring Maria Hill; Tales From the Crypto-Fascist.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #387

THE AVENGERS GET STANDOFFISH

It’s getting so that in comics nowadays you can’t tell the good guys from the bad guys without a scorecard. And sometimes even then.

Maria Hill is currently the director of the Strategic Homeland Intervention, Enforcement and Logistics Division or S.H.I.E.L.D. for short – or SHIELD for even shorter and guess which route lazybones Bob is gonna take. So Maria should be one of the good guys, right? Then she came into possession of some fragments of a Cosmic Cube. A Cosmic Cube, when it was in full on cube form and not fragments, is a device that answers to the will of whomever possesses it and can be used to control matter and energy and even alter reality. So whomever holds the Cosmic Cube has to be careful with it, lest reality be warped in strange and dramatic ways. When the Cube is in fragment form, it’s just about as powerful but the holder has to be even more careful with it, because those fragments can go all Julia Child on you and cut the dickens out of your finger.

Avengers-standoff-welcome-to-pleasant-hill-1Hill and SHIELD experimented on the Cube fragments, hoping to be able to use them to reshape reality as SHIELD deemed necessary. What they got was a little girl. The Cube fragments merged into a sentient being and did what newly-formed fictional A.I. that are confuse about their identity have been doing for years; it adopted the form of a little girl.

Seriously, what is it about the symbology of little girl that screams confused and unsure of one’s self? I know a 63-year-old man who fits that descriptiPleasant_Hill_from_Avengers_Standoff_Welcome_to_Pleasant_Hill_Vol_1_1_001on pretty well, but you don’t see confused A.I. programs going all mid-life crisis.

Anyway, the little girl called herself Kobik. Director Hill called her an asset. Hill had Kobik create Wayward Pines… err excuse me, Pleasant Hill, a quaint little town in backwoods Connecticut. It was 300 Kobiks by 50 Kobiks by 30 Kobiks, so was big enough to house a lots of people. Lots of carefully chosen people. 96 SHIELD operatives who oversaw a town populated by super villains.

Hill called them reformed super villains. But they weren’t reformed, they were transformed, because, Hill had Kobik change 58 super villains. Now those villains look and dress like ordinary people. Then Kobik wiped the minds of the super villains; gave them new memories and personalities. They lived like common people and did whatever common people did; except listen to Shatner covers. For all intents and purposes, these super villains were new people, decent people living the American dream in a small American dream town.

A town that was surrounded by a force field so that none of its residents could leave. It wasn’t a small town, it was prison that really looked a picture print by Currier and Ives. Guantanamo Bay in Norman Rockwell drag.

Which is pretty much the set-up of the current cross-over series Avengers: Standoff! that’s currently playing itself out in several books. Then, complications ensued. Several of the Avengers teams opposed what Director Hill was doing in Pleasant Hill which created conflict between SHIELD and the Avengers. But not as much conflict as when the super villains started to get their memories back. (Oops, did I forget the SPOILER WARNING? Not really. Didn’t think it was needed. Seriously, who didn’t see that revoltin’ development coming?)

So why does Bob I. the Lawyer Guy care about this? Because SHIELD is a governmental agency, meaning all those things found in the Bill of Rights apply to SHIELD and its brainwashing Bastille. I wondered is Maria Hill a good guy or a bad guy for creating this program. And is Pleasant Hill was even remotely constitutional.

Obviously, I’m talking primarily about the 8th Amendment. Even the NRA isn’t concerned about denying the right to bear arms to convicts who are actually serving prison terms. (The only way to stop a bad guy with a gun is with another bad guy with a gun just ain’t gonna cut it.) But how does the prohibition against cruel and unusual punishment affect this Attica of amnesia?

It’s unclear. There is no definitive definition of cruel and unusual punishment. The Supreme Court has ruled that courts should follow an “evolving standards of decency” test in determining whether a punishment is cruel and unusual. So the test changes as the standards of decency evolve throughout the world. Centuries ago being drawn and quartered was considered a just punishment. Most societies would no longer consider drawing and quartering to be humane. (And not just because the strain it puts on the horses would be cruelty to animals.)

Pleasant Hill utilizes mind alteration of some sort to keep it’s inmates under control. Such mind alteration would be a form of assault, as they constitute a physiological change to a person. In most jurisdictions assault is a crime and I’m pretty sure that standards of decency wouldn’t permit prisons to commit actual crimes on their inmates.

This isn’t a situation like a mentally ill patient who is given medical treatment to restore that person to mental health. This is taking people who are mentally healthy – criminals, but mentally healthy – and altering their brains so that they don’t behave like criminals anymore. This is an assault on the inmates’ cognitive liberty, which many courts are recognizing as being protected by the Bill of Rights.

The Supreme Court might rule Pleasant Hill unconstitutional because it violates standards of decency and inflicted cruel and unusual punishment. Or it might rule the mind wiping was cruel and unusual, because it a crime. As we don’t actually have a real-world counterpart to Pleasant Hill, I can’t definitively tell you how a real-world court would view Pleasant Hill.

I can tell you this, however, one of the tests frequently used is whether the punishment is unnecessarily severe. We know prisons in the Marvel Universe have power dampening apparatus, which can suppress the super powers of their inmates so super villains can be held in prisons without having their personalities wiped and replaced. That being the case, Pleasant Hill might have difficulty withstanding a legal challenge, because its practice of committing assaults on the mind is a more severe punishment than is necessary.

Another test that is pretty much universal in its application to a cruel and unusual punishment analysis is that prisons may not deprive inmates of the basic necessities of life. While Pleasant Hill does provide food, clothing, shelter, sanitation, and medical care, there is another necessity that Pleasant Hill omits; the inmate’s ability to have visits from family members.

The leading case on this matter is Overton v. Bazzzetta where inmates sued Michigan because of prison guidelines which limited who could visit inmates. The guidelines eliminated visitation rights for inmates who violated certain prison rules. It also denied inmates the right to have visits from their children if their parental rights had been terminated. The inmates sued under the First (free association), Eighth (cruel and unusual punishment), and Fourteenth (due process) Amendments. The Supreme Court upheld these regulations and found they bore a rational relation to the government’s interest in maintaining internal security in its prisons.

Overton only dealt with a partial denial of some of an inmate’s visitation rights. Inmates in Pleasant Hill are Cosmic Cubed into believing they’re different people. They’re not receiving family visits because they don’t know they have any families. And their families don’t know where they are.

Would the Overton analysis apply to the wide-spread and complete denial of all visitation rights by an inmate’s family and friends practiced in Pleasant Hill? How would the courts balance complete denial against the state’s need to maintain order? Especially when, as I noted before, Pleasant Hill’s mind wipe is a more severe form of punishment than is necessary for the purpose of imprisoning super villains.

I don’t know. The courts might rule in favor of the inmates and hold that denying them all visitation from family and friends in a manner that is more severe than it needs to be, is cruel and unusual punishment. Or they might not.

So why did I write this column, if I don’t know the answers to the questions I’m posing? Because these are the sort of things I think of when I read comic book stories. Even if there is no definitive answer, I still wonder what would happen if this happened in the real world.

And sometimes, like when I don’t have anything else to write about, I share what I’m wondering about with you. To see, are you pondering what I’m pondering?

(The first one of you who says anything about getting a monkey to use dental floss is gonna get such a hit!)

The Law Is A Ass

Bob Ingersoll The Law Is A Ass #379

WONDER WOMAN GOES OUT FOR TRICK OR TREATMENT

“Who watches the watchmen?” Not sure that one’s ever been answered. Who judges the judges? Check the byline.

Deborah Domaine, A.K.A. the super villainess The Cheetah, was serving a sentence in Iron Heights Prison. In Sensation Comics Featuring Wonder Woman #15, a federal court was holding a hearing on Debbi’s motion to be transferred to the Ohlendorff Metahuman Psychiatric Hospital, because Iron Heights wasn’t equipped to treat her “severe dissociative identity disorder.”

Sensation Comics Featuring Wonder Woman #41 (2015) - Page 12

The prosecution called Wonder Woman as a court-appointed expert witness on prison security. During Wonder Woman’s testimony, we got all the background exposition they don’t put into captions anymore. Last year, Debbi escaped from the psychiatric facility of Concord Federal Prison and attacked Wonder Woman in the National Air and Space Museum. During the ensuing fight – what’s a comic book story without an ensuing fight? – one hundred thirty-eight innocent bystanders were injured. Collateral damage. Wow, that fight had more collateral than ten bank loans. Anyway, Debbi was recaptured and transferred from Concord to the more-secure Iron Heights.

According to Debbi’s lawyer, Iron Heights’s medical staff adjusted Debbi’s medication and Debbi’s behavior had stabilized. So Debbi filed a motion to be transferred to Ohlendorff where she could receive the treatment necessary to cure her of her mental illness. Wonder Woman opposed the transfer and testified Ohlendorff’s security protocols were too lax to insure that Debbi would remain incarcerated there.

Why was Wonder Woman called as a court-appointed expert on prison security? I guess because her foes escape incarceration every alternate Tuesday that gave her expertise on which DCU prisons are secure. Personally, I’d question Wonder Woman’s expert status unless she said none of them are. DCU prisons have the biggest Open Door Policy since John Hay.

Unfortunately for Wonder Woman but not for the story – this was only page 4, something had to fill out the remaining pages – Judge Holzman transferred Debbi Ohlendorff. Then, short story shorter; Debbi escaped, Wonder Woman captured her, and Debbi went back to Iron Heights.

You might be wondering how Ohlendorff, a psychiatric hospital dedicated to treating metahumans with mental illness problems, could lack sufficient security to make sure its extremely dangerous patients all stayed on the grounds. I know I did. Seems a bit counterproductive. But, then, so does making a hotdog that’s bigger than the bun and it’s not like that never happens.

I wondered even more about defense counsel’s argument that neither Iron Heights nor any other metahuman prison was equipped to treat Debbi’s mental condition. The Eighth Amendment’s cruel and unusual punishment clause requires prisons to supply inmates with adequate medical care. The US Supreme Court said so in Estelle v. Gamble. Federal courts have applied Estelle’s rule both to physical health and to mental health care. When prisons show an intentional indifference to the mental health issues of its inmates, they violate the Eighth Amendment. Among the ways prisons can show indifference are a failure to have an adequate, qualified mental health staff on-site and the failure of large prisons to have a licenced psychiatrist on staff.

We know Iron Heights, like other DCU prisons, locks its cell doors on the honor system, so it might also consider viol-Eight-ing the Amendment to be as a badge of honor. Maybe it didn’t have on-site psychiatric staff, either. In that case…

Wait. No. No. Defense counsel said that Debbi received medications in Iron Heights, that Debbi’s medication had been adjusted by Iron Heights, and that the medication had stabilized Debbi’s behavior. Someone on Iron Heights’s staff was administering those meds. More important, someone on staff was competent enough to evaluate Debbi’s medications and adjust them by prescribing a proper dosage which had stabilized Debbi. That someone had to be a doctor. Debbi was receiving some treatment in Iron Heights, treatment that seemed to be working. How was Iron Heights not equipped to handle her mental disorder?

But for the sake of argument, let’s assume Debbi’s argument was valid. There is a case which held the failure to transfer an inmate from a prison to a hospital when the prison could not adequately treat the inmate was deliberate indifference; lending support to Judge Holzman’s ruling. But transferring Debbi to a hospital the judge knew couldn’t keep her locked up, that’s a different matter.

Mentally-ill inmates may have the right to be transferred to a hospital, but they don’t have the right to choose which hospital. Courts have ruled prisons must give inmates medical treatment, but they don’t have to give the exact treatment the inmate requests if other treatments are adequate. In addition, the government’s responsibility to protect its citizens means mentally-ill inmates should be hospitalized in an environment that is consistent both with their treatment and with public safety. If the defendants demonstrate a threat to public safety – by, say, escaping every alternate Tuesday and injuring one hundred thirty-eight innocent bystanders – courts are justified in having them hospitalized in a more restrictive hospital than the one the defendant might choose.

Judge Holzman might have granted Debbi’s motion to be transferred to a hospital. But in light of her past record, I find it doubtful that Judge Holzman would have transferred her to a hospital that a court-appointed expert on security testified wouldn’t be able to hold her. Hell, Judge Holzman didn’t even let Debbi into his courtroom; Debbi attend the motion hearing via closed-circuit television. If Holzman thought Debbi was so dangerous that he didn’t want her in his courtroom; he would not have sent her to an insecure mental health facility. He would have sent her to a hospital but one that was more secure. Like Concord or Arkham Asylum. Then Debbi could receive the treatment she required and the public would be safer, because Debbi was in a more-secure facility.

One where she might only be able to escape every third Tuesday.

The Law Is A Ass

BOB INGERSOLL: THE LAW IS A ASS #304 GREEN ARROW MAKES HIS POINT– RIGHT BETWEEN THE EYES

prometheus_1_superRepeat after me, as I repeat for the I don’t know how manyth time: Murder is bad for children and other living things.

Murderers are also bad.

So you can just imagine how I feel about murderers who murder.

Which brings us to the conclusion of Justice League: Cry for Justice. In issue 7  of said mini-series, the super-villain Prometheus– actually the second of three super-villains to use that name in the DC Universe, don’t ask – has been cornered by the JLA. He told them that he has hidden devices in Star City and the other home cities of the other JLA members which will teleport those cities through time and space. But he promised to tell the heroes where the devices were hidden, if they let him escape.

Green Arrow refused to negotiate, so Prometheus activated the devices; the one in Star City first. The device in Star City goes off first. Unfortunately, it malfunctioned and didn’t teleport Star City. Instead it demolished much of the city and killed ninety thousand people. While the other devices were about do the same to the other heroes’ home cities. At this point, Green Arrow relented and the JLA agreed to let Prometheus go in return for him telling them where the devices are and how to deactivate them.

Now in my day, if you’ll allow me a slight digression into Cranky-Old-Man mode, the heroes wouldn’t have agreed to Prometheus’ demands. They would have apprehended him and figured out a way to keep his devices from doing any damage at all. That’s why we called them “heroes,” they were that good.

But nowadays, in a comics world which has been thoroughly corrupted by the excesses of the destruction porn which continues to generate big box office through the oeuvre of directors Michael Bay, Roland Emmerich, Zack Snyder, and anyone else who thinks computer graphics should be used in place of things such as story, plot, or characterization, the heroes can’t be heroes. They had to stand by helplessly and watch the destruction porn destruction of Star City and let Prometheus go. Okay, they did stop the other devices. But not before Star City was partially destroyed and ninety thousand people died. And not before they let Prometheus get away.

Let Prometheus get away, that is, until the final page of Justice League: Cry for Justice # 7. That’s when Green Arrow tracked Prometheus down, put an arrow through his eye – How Werthamesque – and said, “Justice.”

Green Arrow didn’t act as a hero, he acted as an executioner. He acted expediently. And, as Tony Isabella has said, “expedience isn’t heroism.”

A quick aside: I was amused by the description of this scene in Wikipedia’s entry on Prometheus, that the villain is “apparently killed by Green Arrow,” because, let’s face it, this is a DC Comics story, where death has about as much meaning as a Kim Kardashian’s wedding vows.

Cut to some days in the future when, in Green Arrow and Black Canary # 32, Green Arrow acknowledged that he crossed a line and turned himself into the police. A speedy trial followed later that same issue. I said it was speedy, didn’t I? I just didn’t realize that it would be speedier than Speedy Alka-Seltzer  and Speedy Gonzales combined. It wasn’t much of a trial, given that Green Arrow freely admitted his act and, the trial moved speedily to the verdict.

Where the jury found Green Arrow not guilty.

Did I say, “not guilty?” Well, no, I didn’t. The foreman of the jury said that. Yes, even though Green Arrow freely admitted his guilt in open court, the jury found him not guilty.

It’s called jury nullification and it happens from time to time in the criminal justice system, or, if you want to believe the trials that David E. Kelley used to show us in The Practice, it happens nearly every freaking week.

Jury nullification happens when the jury is aware that the defendant violated the law, but, for some reason, sides with the defendant and doesn’t want to convict. In this particular trial, it was probably because Green Arrow did what the jurors wished they could have done, brought ultimate justice – read vengeance – to Prometheus for the ninety thousand Star Citizens who he killed. The jury liked what Green Arrow did, even if it was against the law, so it found him not guilty.

They judge presiding over the trial wasn’t as forgiving as the jury. He decided that the verdict notwithstanding, Green Arrow deserved to be punished. So the judge ordered Green Arrow exiled from Star City.

Hey, Your Honor, what was so difficult to understand about the words “Not guilty.” It couldn’t have been the “guilty” part, you judges hear that word all the time. It must have been the word, “not.” That’s the one you’re not familiar with.

So let me explain it to you. “Not guilty” means Green Arrow wasn’t convicted. He has to be set free. It also means the Constitution of the United States forbids you from punishing him.

Look it up, it’s in the Fourteenth Amendment. You know the one that says you can’t deprive a person of “life, liberty, or property, without due process of law.” It’s the one that says, if a person is found not guilty by a jury of his peers, you can’t punish him anyway.

Oh, it’s also in the Eight Amendment, the one that forbids cruel and unusual punishment. You know like punishing a person who was found not guilty by exiling him.

And, for good measure, it’s also part of the Privileges and Immunities Clause of the United States Constitution, which the Supreme Court held gives citizens the right to freedom of movement as far back as 1823 in Paul v. Virginia, when the Court wrote that the Privileges and Immunity Clause gives citizens “ the right of free ingress into other States, and egress from them.”  So under this provision, Your Honor, you couldn’t have barred Green Arrow from traveling in your state or city without due process. Maybe, if he had been found guilty, you could have. But he wasn’t, so you can’t.

Am I getting through to you?

I mean, justice is supposed to be blind, not brain dead.

Categories

Archives

Everything you need to make great comics!

comicmix-pro-300x69-2

Nucleus X

Bookshop Zaks