Tagged: Eighth Amendment

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #388

MARIA HILL GETS A STANDOFF O

When last we saw The Avengers, several of their branches – The All New, All Different; the New; the Uncanny; and for all I know Steed and Mrs. Peel – were standing off against S.H.I.E.L.D. because of Pleasant Hill. As it’s been a couple of weeks since I’ve been able to write about Avengers: Standoff!, I thought a quick recap might be in order.

S.H.I.E.L.D. and its director Maria Hill got a hold of some fragments of a Cosmic Cube, a device which is controlled by the will of its holder and can reshape reality. It’s kind of like Green Lantern’s power ring but without the weakness to yellow or the need to make all its constructs curry the favor of Kermit the Frog. They used the fragments to create Pleasant Hill, an idyllic, all-American small town somewhere in Connecticut which was neither idyllic or all-American. See they populated Pleasant Hill with super villains whose memories had been wiped so that they believed they were non-powered residents of Main Street, USA. Various Avengers teams were getting ready to square off against Director Hill and S.H.I.E.L.D. because they didn’t agree with what had been done to the villains. Meanwhile, the super villains, who had regained their memories, were getting ready to square off against Director Hill, and S.H.I.E.L.D., not to mention the various Avengers teams, because they didn’t agree with what had been done to the villains either. And, for good measure, math students were getting ready to square off against Geometry teachers, because… Well wouldn’t you?

That’s where I left you last time I wrote about Avengers: Standoff! It’s also where I’m going to leave you this time, too, because the same things that kept me from writing columns for the past few weeks also kept me from reading comics for the past few weeks. I haven’t finished reading Avengers: Standoff! yet so have no idea how it ends. Or even if it ends. (Considering what goes on in comic books these days, that’s not as facetious as it sounds.)

Last column, I wrote about how Pleasant Hill prison violated the Eight Amendment to the United States Constitution and it’s prohibition against cruel and unusual punishment. My friend and fellow comic-book writer Tony Isabella didn’t fully agree with me. Oh he thought my analysis was fine, up to a point. That point being the USAPATRIOT Act. He didn’t think my analysis took into account what provisions might have been enacted to imprison super villains in a post-9/11 world.

I told him that because so many of the early villains in the Marvel Universe were super powered Communists, Congress in the Marvel Universe probably enacted it’s version of the USAPATRIOT Act in 1961, not 2001. However, considering the USAPATRIOT part of the USAPATRIOT Act is an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, it’s Marvel Universe version would probably have been called something like the Emergency Xenogenesis Containment and Elimination Legislation and Super-powered Individuals Oversight and Regulation Act.

So what affect would our hypothetical act have on a place like Pleasant Hill? Depends. No, I’m not claiming that the answer might make you poop your pants, I’m saying that some inmates in Pleasant Hill might be treated very differently from other inmates.

We know from our own real-life experience that people designated as enemy combatants are treated differently from US citizens under the USAPATRIOT Act. Prisoners who are not US citizens and classified enemy combatants can be held indefinitely and without being charged in places like the Guantanamo Bay detention camp. So prisoners in Pleasant Hill such as Helmet Zemo or Ulysses Klaw, who are not American citizens, could receive the enemy combatant designation. Especially Zemo. Even money says the government would designate a German national who headed the terrorist organization Hydra an enemy combatant without even a second thought.

Other Pleasant Hill inmates, such as Mr. Hyde, the Trapster, and the Absorbing Man are American citizens. I practiced law for 8 years after the USAPATRIOT Act was enacted, so I know from personal US citizens who became inmates didn’t lose their 8th Amendment rights. Even after 9/11. Thus, it would be harder for Director Hill or S.H.I.E.L.D. to deny the American inmates in Pleasant Hill of their constitutional rights, with or without our hypothetical congressional act.

When governmental agencies – such as S.H.I.E.L.D. – seek to curtail the constitutional rights of inmates, they must be able to show they’re using the least invasive means possible. That is to say, their method of imprisonment must be consistent with both keeping the inmates in while depriving them of the fewest number of constitutional rights possible as possible. Pleasant Hill wiped its inmates’ memories and personalities and replaced them with different memories and personalities. I still think that was an invasive and unconstitutional assault which deprived the inmates of their constitutional rights, and I think many courts would likely rule in this manner, even after our super-human control act.

Prisons in the Marvel Universe have power dampening mechanisms which can take away inmates’ super powers. Super villains without super powers are just as easy to keep in prison as normal prisoners; you know, the ones who aren’t being mind-wiped. So mind wiping them wouldn’t be the least invasive form of imprisonment.

Sure super powered inmates would be kept in facilities whose security was even more maximum than Alcatraz. Call it a supervillainmax prison. But I just don’t think courts would side with the mass mind-wiping of the inmates.

Moreover, Maria Hill obviously didn’t think the courts would side with her. Or anyone else. After all, she kept the Pleasant Hill prison a secret from three different Avengers teams, her bosses in the World Security Council, the courts, and pretty much everyone else in the world. If she thought she was on firm footing with Pleasant Hill, she wouldn’t have pussyfooted around in secret.

I’m sure that when Avengers: Standoff! ends – no, I haven’t suddenly gotten caught up on my reading, I’ve been writing this column – Pleasant Hill prison will be somewhat more public. Super hero/villain battles tend to make things public, even when they happen in rural Connecticut. Then after Maria Hill’s pet prison has been outed, the World Security Council will have to decide how do they solve a problem like Maria. Ms. Hill and allies must now face the music. And I have confidence they’ll do something to her. I wish I could be sure it would be something good, like them telling her so long, farewell, but it’ll probably be little more than a slap on the wrist. Still, a guy can do-re-mi-m, can’t he?

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 #341: COMMISSIONER GORDON WON’T BAIL ON US

batmaneternal2featuredimageI’ll let you in on a little secret: Batman Eternal isn’t. Eternal, that is. It won’t go on forever. Sometimes it just seems like it will.

Of course, if it did last an eternity and it continued to do things like the bail hearing found in Batman Eternal # 4, that wouldn’t be bad for me. It would mean an eternity of column material.

So, in Batman Eternal # 4, Commissioner Gordon appeared before a judge in a bail hearing after being charged with 162 counts of manslaughter. If you’re wondering how or why, you can find the answer in Batman Eternal # 1. Or you can read last week’s column, where I discussed exactly that. But don’t look here, because I’m not chewing that cud twice. Why not? Be cuds, that’s why.

The judge denied Gordon bail with the following reasoning, “All this destruction. All this death. This is your fault, James Gordon. Because of your negligence. One hundred sixty-two dead. Billions in damage. Critical Gotham infrastructure destroyed. And a major disruption to the lives of every citizen in Gotham. … I’m sorry … but the prosecution is correct that you are a flight risk. You’ve a longstanding willingness to align yourself with Gotham’s vigilante elements, so I’m afraid I have no choice. Your request for bail is denied. And you will be held in Blackgate Prison until your trial for manslaughter.”

A judge in a bail hearing wouldn’t say those things. Oh, he might say the “Your request for bail is denied,” part. He wouldn’t say the, “This is your fault,” part. Between newspapers, TV, blogs, and even live tweeting, other people, meaning probably all of Gotham City, would know that this judge – a respected person who the laity look up to as an expert on the law – said Gordon was guilty. Good luck finding an impartial jury after that little tirade.

As for bail, remember, I only said the judge might deny bail. Might being the key, and even italicized, word. I think it’s unlikely that the judge would deny Commissioner Gordon bail. Okay, more likely than a judge expressing his opinion that the defendant was guilty, but still not likely.

Bail is a pledge of money or property the defendant makes as a surety that he will return for trial if the court releases him before trial. The Eighth Amendment to the Constitution says all criminal defendants have a right to bail that is not excessive. And, while the Eighth Amendment doesn’t expressly grant a right to bail, Rule 7:4-1 of the New Jersey rules of court specifically does grant all defendants a right to bail.

The judge denied bail because he deemed Gordon was a flight risk. The factors which a judge is supposed to consider in order to determine whether a defendant is a flight risk are such things as the length of possible sentences, the strength of the evidence, the defendant’s family and community ties, the defendant’s financial resources, the defendant’s character, and the opportunity to flee.

I admit, the “strength of the evidence,” and “length of sentence” factors do weigh against Gordon. The evidence in against Gordon appeared to be strong. It probably will continue looking strong until Batman Eternal # 48 or so, when Batman finally stops treading water and starts investigating the case in earnest.

The maximum sentence for aggravated manslaughter in New Jersey is 30 years. If Gordon were convicted on all 162 counts and the judge imposed maximum, consecutive sentences on each count, that would be 4,860 years. Even I, who’s acting as devil’s advocate for Jim Gordon, admit that is more than just a little bit lengthy.

But while these facts alone might make Gordon seem a flight risk, those aren’t the only factors the judge should have considered. What about the other factors a judge is supposed to consider? What about, say family and community ties. Gordon has plenty.

Commissioner Gordon had a distinguished career in public service during which he rose from the rank of sargent to commissioner. In less than five years, if I read the revised continuity of the New 52 correctly. He has a daughter in Gotham City. He has many friends in Gotham City, including one of the leading citizens of the city, Bruce Wayne. In other words, Gordon has lots of family and community ties to the community. This factor weighs heavily against ruling Gordon a flight risk.

How about financial resources? Gordon doesn’t have a lot. He was a cop. An honest cop – one of the few honest cops in Gotham City, it seems. Cops don’t earn a lot of money. Honest cops earn even less. Okay, commissioners earn more than beat cops, but still, Gordon wouldn’t be rich. Certainly not rich enough that he could set up a new life for himself in, say Belize, were he to skip bail and flee Gotham.

Yes, Gordon does have rich friends, including one of the leading citizens – and the richest  citizen – in Gotham City, Bruce Wayne. Wayne could set up a new identity for Gordon, if Gordon choose to flee. And if Wayne decided to subvert the law in this way. But what evidence could the  the state introduce to prove that Bruce Wayne was likely to fund any plan Gordon had for fleeing the jurisdiction? Probably even less evidence than it could introduce to prove that Gordon planned to flee the jurisdiction. And it didn’t have any evidence that he was going to flee.

Defendant’s character. Remember what I said about Gordon being one of the few honest cops in Gotham? Kinda goes to his character, doesn’t it?

The only evidence that the state really had to prove that Gordon had a bad character is that he worked hand-in-hand with known vigilantes. This was the only reason the judge cited when he denied bail. But just because a man works with vigilantes, particularly vigilantes who are actually quite effective in bringing the criminal element to justice, doesn’t make him a person of bad character. Moreover, working with actual justice-helping vigilantes would dictate that a person was of a law-abiding character, not a bail-jumping character.

After weighing the factors in Gordon’s case, I don’t think there was enough evidence to justify denying Gordon his right to bail. To be sure, the judge could have set the bail very high. But I still think the judge would have granted bail.

So why didn’t the judge grant Gordon bail? I have a theory.

Remember what I said earlier about Gordon being one of the few honest cops in Gotham City? Same is true of its politicians. Mayor Sebastian Hady? Corrupt. Former police commissioner Gillian Loeb? Corrupt. The commissioners between Loeb and Gordon? Corrupt. Tammany Hall? Historically corrupt. But it’s historical corruption is only a fraction of the corruption that is shown every time a politician appears in a Batman story. So it wouldn’t be a stretch to conclude the judge in Gordon’s hearing? Corrupt.

Now someone is orchestrating this massive 52-issue plan to frame Commissioner Gordon. Is it so hard to believe that the judge would be adverse to accepting a little something, something from that “someone?” Or that the trial judge accepted a little more something, something to order that Gordon serve his time waiting trial in Blackgate Prison instead of the county jail, where most pre-trial detainees are held? I don’t think so.

Were this England, instead of Gotham City, you could say denying Gordon bail was a case of quids pro quo. It being Gotham City, I think it’s more a case of status quo.

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.

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