But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.” • Chief Justice Roberts
“I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy. • Justice Scalia, with whom Justice Thomas joins, dissenting
“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.” • Justice Thomas, with whom Justice Scalia joins, dissenting
“For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.” • Justice Alito, with whom Justice Scalia and Justice Thomas join, dissenting.
I have a question for Bob Ingersoll.
I don’t understand the dissenting opinions of Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito. From my reading of their dissents – of which only excerpts are shown above – it seems to me that these men would also, given the chance, vote down the May 17, 1954 Warren Court’s decision on Brown vs. Board of EducationTopeka, which:
“…declared state laws establishing separate public schoolsfor black and white students to be unconstitutional [because]’separate educational facilities are inherently unequal’ [and] as a result,de jureracial segregationwas ruled a violation of the Equal Protection Clauseof the Fourteenth Amendmentof the United States Constitution…”
Hmm, there’s that damn Fourteenth Amendment again.
Bob, I was taught way back when that our Constitution is a “living document,” which is defined by David Strauss of the University of Chicago Law School as: “…one that evolves, changes over time, and adapts to new circumstances, without being formally amended.” But apparently the four dissenting opinions are based on “constitutional originalism,” which Straus defines as “…the antithesis of…a living Constitution…It is the view that constitutional provisions mean what the people who adopted them – in the 1790s or 1860s or whenever – understand them to mean…[and] the Constitution requires today what it required when it was adopted…there is no need for the Constitution to adapt or change, other than by means of formal amendments.”
So, Bob, does that mean that Justice Clarence Thomas, a black man, believes that he belongs in a segregated society, that he thinks it’s okay for black children to go their schools and white kids go to their schools and never the twain shall meet?
So, Bob, does that mean that Roberts, Scalia, Alito, and Thomas also believe that women should not be allowed the right to vote, much less sit on SCOTUS? (Yes, I know we women gained the right to vote through the Nineteenth Amendment, which is the formality referred to by Straus, but women not having the right to vote was not one of the original “constitutional provisions” back in 1790 when Rhode Island became the final state to ratify the document.)
Bob, why do so many conservative pundits on radio and TV accuse SCOTUS of “enacting laws, not judging them?” I mean, if it weren’t for SCOTUS, half of them wouldn’t even be able to be on radio or TV, right?
And what’s with the accusations of “playing politics?” I seem to remember that a certain Texan became President of the United States because of SCOTUS “playing politics.” Where was all the shouting then?
Personally, I think it’s very hard for a Justice, or a radio or TV pundit, or anyone to really separate him or herself from their personal biases and life experiences when balancing the wheels of justice –
A Mr. Richard Feder of Fort Lee, New Jersey writes in and says… Something completely off-topic. This is “The Law Is a Ass,” not Roseanne Roseannadanna. However, a Mr. Ronald Byrd writes in and says, “Hi. Wondering, did you pay much attention to the X-Men/Utopia storyline? Because it seemed to me that, by declaring Utopia to be a sovereign nation (whether or not Cyclops’s actions conformed to real-world laws on how to declare a sovereign nation isn’t presently the point), Cyclops unilaterally declared everyone on Utopia to be citizens of that nation and thus unilaterally stripped them of their (for the most part) American citizenship. Without asking. Which struck me as, I don’t know, inappropriate? Did I misunderstand that part? Thanks for your time.”
Is that what happened in Utopia? I’m afraid my memory is like fine wine. It did get better with age. Then it was exposed to oxygen and turned into vinegar. So, if that’s what happened in Utopia, I kinda forgot about it. (Forgetting was kind of a defense mechanism.) But if that’s what happened, then here’s why Cyclops didn’t do the bad thing you thought he did. (Which would be the first time in a long time that Cyclops, as currently written, didn’t do a bad thing.)
American citizenship is guaranteed in the United States Constitution. The first sentence of the Section One of the Fourteenth Amendment to the United States Constitution says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” It’s called the “Citizenship Clause,” which is a bit grandiose considering it’s only a sentence, not a whole clause. The Citizenship Clause was written to undo the infamous United States Supreme Court ruling in the Dred Scott, about which the less said the better, because Dred Scott held African Americans were not, and could not become, United States Citizens.
The Citizenship cemented the right of all United States citizens to be citizens. Which wasn’t always the slam dunk you’d think it would be.
American citizens have a constitutional right to be American citizens. Seems rather basic. But in 1940, Congress adopted a bleach to basic attitude. Remember, this was in the days and years leading up to World War II, when our relations with several foreign countries – such as Germany, Japan, and Russia – were as strained as Spanx on Honey Boo Boo’sMama June. Back then, the United States motto was “For every action there is an equal and opposite overreaction.” Japanese interment camps, anyone? One of the biggest overreactions was the Nationality Act of 1940.
Among the many provisions of the Nationality Act of 1940 was Section 401, which created many ways in which citizens could lose their citizenship. Naturalized citizens, for example, could lose their citizenship, if they lived abroad. (Ruled unconstitutional in the case Schneider v. Rusk under the Equal Protection Clause.)
All citizens could lose their citizenship if convicted of military desertion during a time of war. (Ruled unconstitutional in the case Trop v. Dulles as a violation of the Eighth Amendment’s protection against cruel and unusual punishment.)
Other provisions of the Nationality Act said citizens could lose their citizenship if they performed military or government service for another country when coupled with citizenship of that country. Or if they lived in a foreign country to evade military service. Or if they served in the armed forces of a foreign state, voted in a foreign election, or acquired the nationality of a foreign state. And that would be the type of expatriation concerning us today; loss of citizenship when one becomes a citizen of a foreign country, like the mutant country of Utopia.
Most mutants didn’t ask to become citizens of Utopia. They became Utopians when Cyclops claimed them. Did they lose their citizenship because of what Cyclops did? The short answer is “no.” The long answer is, “No and here’s why.” Because the core function of this column – to inform you of how the law works – requires exploring the “here’s why” part, we’ll go with the long answer.
American citizens cannot lose their citizenship unless they commit a voluntary act which is inconsistent with citizenship. In Nishikawa v. Dulles, a natural-born citizen of Japanese descent moved back to Japan with his family. While living in Japan, he was involuntarily conscripted into the Japanese army. The Supreme Court ruled that he could not be deprived of his citizenship under the Nationality Act, unless his act was voluntary. Because Nishikawa was involuntarily conscripted, his service in the Japanese army could not be used to expatriate him.
The Nishikawa case has a direct bearing on the Utopia matter. If Cyclops unilaterally declared all mutants to be citizens of Utopia, then they didn’t become citizens of a foreign country voluntarily. They became citizens by the high-handed actions of Utopia’s government. Under Nishikawa, all mutants who became involuntary citizens of Utopia by Cyclopean fiat could not have their citizenship taken away. They also can’t have their Fiats or Toyotas taken away. But that’s another matter.
But what about those mutants who did something in service of Utopia? Like Wolverine, who headed up X-Force, the Utopian mutant covert-ops squad. (And why would a place called Utopia need a covert-ops squad in the first place?) Would those mutants lose their citizenship for voluntary actions which were inconsistent with American citizenship? Again, the answer is no.
In Afroyim v. Rusk, a naturalized citizen who voted in an Israeli election was being expatriated. The Supreme Court held the Citizenship Clause of the Fourteenth Amendment dictates that U.S. citizens cannot be striped of their citizenship involuntarily. A citizen may only lose citizenship if he or she voluntarily renounces it. The government may not take citizenship away. Thus, even if citizens commit a voluntary act which is inconsistent with American citizenship, they may not lose their citizenship involuntarily.
So it looks like none of the mutants on Utopia would lose their citizenship simply because they became citizens of Utopia. It’s a win for all mutant kind.
However, the fallout of the Afroyim case is that the U.S. government, which strongly opposed the concept of dual citizenship, has not grown to accept it. That means that the Utopians were citizens of both the United States and Utopia. And had to pay taxes to both of them. So maybe we should reexamine that whole win for all mutant kind notion.
Okay you’ve got them, now what are you going to do with them?
By “them” I mean super villains. So it shouldn’t be much of a leap to conclude that “you” means super heroes. Certainly a lot less than a tall building.
Doesn’t matter where you are – comic books, movies, television, or even cosplay – if you have super heroes, you’re going to have super villains. And if you have super villains, you’re going to have the problem of what to do with them after they’ve been caught. I realize that in today’s comics, catching the bad guys isn’t always a foregone conclusion, but for the sake of argument let’s assume that the super heroes actually do catch the super villains So, then what to do with them?
In comic books, it’s not a problem. Comic-book universes all seem to have some sort of power dampening technology. Turn it on and the super villains powers go away. That way they can’t use their super powers to break out of the prison.
Television is where the heroes have the most problems with what to do with the bad guys. It started as far back as 1952 and the first season of Adventures of Superman. You remember “The Stolen Costume?” Two crooks learned Clark Kent was Superman and Superman left them on the top of a mountain so that they couldn’t tell anyone what they knew. When they tried to climb down, because they didn’t believe Superman would come back with food for them, they fell to their deaths. And Superman’s reaction was to say they fell off a cliff about as casually as he might say, “Lois? Oh she fell out the window.”
The problem got worse with the 60s Batman TV series. Oh, Batman knew what to do with the super villains he caught. It wasGotham City that didn’t know what to do with the super villains; other than let them escape. I swear Gotham Pen was built with unreinforced cardboard and doors locked on the honor system.
But in the new millennium, things have gotten really out of hand vis-a-vis captured super villains and what do with them. Especially in the shared TV universe of Arrow and The Flash.
In The Flash, the Flash and his team from S.T.A.R. Labs capture a super villain every few weeks. When they do they put said villain in The Pipeline, their private a prison inside the tube of the S.T.A.R. Labs particle accelerator, quicker than you can say, “Jail, jail, the gang’s all here.” What the heck do we care? I don’t know about the you part of “we,” but the me part cares quite a bit. Putting the super villains in the Pipeline is problematic.
Yes, I know the S.T.A.R. labs group think that Central City and it’s ordinary prison for ordinary prisoners, Iron Heights, can’t handle the metahumans. Guess the all-S.T.A.R.s thought Iron Heights had incorporated all those prison reforms that Warden Crichton used in Gotham City . And, yes, S.T.A.R. Labs may think the metahumans are their responsibility, what with their particle accelerator having created the metas and all, but they can’t just round up all the metacriminals and put them in S.T.A.R.’s own private Ida-hole.
See Missouri – and according to the Flash episode “The Man in the Yellow Suit,” Central City is in Missouri – has a law. Missouri has lots of laws actually, but we’re only concerned with one; MO Rev Stat § 565.130.This laws says a person commits the crime of false imprisonment if he “restrains another unlawfully and without consent so as to interfere substantially with his liberty.”
The S.T.A.R. Lab Rats have definitely interfered with the liberty of the evil metahumans in a substantial way. They’ve locked them up in a private prison. Was it unlawful? Do pigeons poop in the park?
These villains haven’t been found guilty of anything. Hell, they haven’t even been put on trial. S.T.A.R. Labs just decided they were too dangerous to run around loose, so locked them up. And while S.T.A.R. Labs may be correct in its assessment, it’s wrong in its solution. You can’t go around locking up the people you think are dangerous. The government can’t do it without first affording due process of law. And private citizens can’t do it at all.
Don’t go crying PATRIOT Act to me, the metahumans aren’t foreign national enemy combatants. They’re just American criminals. Criminals with those annoying little things called constitutional rights.
As to S.T.A.R. Lab’s claim ordinary prisons can’t handle the metahumans, sez who? The Pipeline handles them all right. S.T.A.R. Labs developed some sort of power dampening technology that it uses to keep the metahumans under control in their private prison. In the episode “Rogue Air,” the dampeners even kept the metahumans under control outside of the Pipeline, when S.T.A.R. Labs and the Flash were trying to transport the metahumans to a different prison. If S.T.A.R. Labs has technology that it uses to keep the metahumans under control, why couldn’t it share the technology so that Iron Heights could use it to keep the metahumans under control?
If your answer was, “I don’t know,” don’t worry; so was mine. But I do know this, “I don’t know,” isn’t a good enough answer to justify not sharing it. Or for locking up metahumans in a private prison without any legal authority.
Now over in Arrow, there aren’t as many metahuman villains. Most Arrow baddies are held in the handy hoosegow. But there are a couple– Slade (Deathstroke) Wilsonand Digger (Captain Boomerang) Harkness – who weren’t sent to the standard stockade. These two were locked up in a secret black box prison on the island of Lian Yu. The only difference is that it wasn’t Arrow who locked up the bad guys there, it’s A.R.G.U.S.
A.R.G.U.S. (or the Advance Research Group United Support) is a secret organization. In the DC comics, A.R.G.U.S. is a federal agency. Arrow has been a little sketchy with it’s background for A.R.G.U.S. but on the show the organization has enough governmental ties for it to be either an actual agency or a quasi-agency of the US government. It’s certainly enough of a governmental agency that the Fourteenth Amendment – the one that guarantees the government cannot deprive citizens of their liberty without due process of law – would apply to it. So because A.R.G.U.S. has both Deathstroke and Boomerang locked up in its secret island prison without either of them having had the benefit of due process or a trial, it’s violating their constitutional rights. It may not be against the law of any state – Lian Yu is somewhere in the South China Sea and not in any state – but it’s still illegal. What with it violating the Constitution and all.
So, to repeat the question with which we opened: You’ve got them, now what are you going to do with them? I don’t know. You don’t know. Maybe even the super heroes don’t know. But whatever’s done them, it shouldn’t be what’s being done with them now.
What? No I didn’t promise that I wouldn’t write about Batman Eternal this week, I promised I’d try. Also I’m not really writing about the year-long Batman story that is certainly living up to its name, so chillax. (Chillax. How is that even a word? Sounds like a murder weapon in Alaska.) This week I’m writing about what came after Batman Eternal #29. With a little of what came after Batman Eternal #34 thrown in. Which means what I’m writing about is Arkham Manor #1.
In Batman Eternal #29, Arkham Asylum – the hospital for the criminally insane located on the outskirts of Gotham City that houses Joker, Two-Face, Mister Zsasz, and most of the rest of Batman’s rogue gallery – blew up. Although how and why isn’t really important what the hell, I’ve got some time to kill. To put it succinctly, Deacon Blackfire, a magically delicious villain was using his magic in a fight with Jim Corrigan in the tunnels below Arkham Asylum. Blackfire was attempting to pull the Spectre, the ghostly spirit of God’s vengeance that lives inside of Corrigan’s body, out of Corrigan’s body. But Blackfire wasn’t adept enough for this kind of magic and in Batman Eternal # 29, his attempts resulted in …
SPOILER WARNING!
Usually, this is where I’d warn you I’m going to tell you how Batman Eternal #29 ended. This time I’m not. Arkham Manor #1 came out about a month before Batman Eternal # 29, even though it takes place after that story, and it gave away the ending to Batman Eternal #29. If DC didn’t mind spoiling its own story, why should I?
… an explosion. An explosion which caused Arkham Asylum to collapse in on itself in Batman Eternal #30.
Hundreds of people died when Arkham Asylum came tumbling down. But wouldn’t you know it, they were incidental deaths. Collateral damage, as it were. Somehow Joker, Two-Face, Mister Zsasz, and most of the rest of Batman’s rogue gallery survived.
Arkham Asylum’s destruction left Mayor Hady and Gotham City with a big question, where to put “the city’s most dangerous lunatics.” Any time someone suggested a possible new location for all those dangerous lunatics, the citizens of Gotham City basically responded, “Not in my backyard.” Even the ones who lived in brownstones and didn’t have back yards.
Fortunately for Mayor Hady and the city fathers, in Batman Eternal #34 the federal government seized control of Wayne Enterprises and all of its assets. I talked about the how and why of this three weeks ago, so you can go there to read about it, if you don’t already know. (BTW, I really recommend that you go to my old column to read about how and why the Feds took over Wayne Enterprises rather than reading Batman Eternal #34. Not because my new web-based home for the column needs the hits, I just think the experience will be more pleasant.)
Anyway, Bruce Wayne was left largely penniless. (Well, he does have this one giant penny sitting around doing nothing, but I’m not sure it’s negotiable.) Bruce had moved out of Wayne Manor and was living in an apartment in Gotham City. So Gotham City used eminent domain to take over Wayne Manor and make it Arkham Manor, the new home for Gotham’s criminally insane.
Eminent domain, the process by which the government may take private property for public use, is not a new concept. The concept dates back to biblical times, when King Ahab of Israel, offered to purchase the vineyards of one of his subjects, Naboth. Naboth declined Ahab’s offer, so Ahab’s wife, Jezebel, framed Naboth for blasphemy and had him stoned to death. After which Ahab got the vineyards. Since that time, they’ve refined the concept of eminent domain. It’s a little more fair and a little less killy. After the French Revolution, the French formally adopted the Declaration of the Rights of Man and of the Citizen in 1789. Among it’s provisions is the sentence, “Property being an inviolable and sacred right no one can be deprived of it, unless the public necessity plainly demands it, and upon condition of a just and previous indemnity.” The Founding Fathers drafted similar language in the Fifth Amendment of Constitution of the United States, “nor shall private property be taken for public use without just compensation.” Like I said, a little less killy. (Yes, there’s a bit of a history lesson here, but history is important. To paraphrase George Santayana; those who cannot learn from history are doomed to repeat it. Usually in summer school.)
So Gotham City decided to take Wayne Manor through eminent domain and convert it to Arkham Manor. In order to invoke eminent domain, the government must prove four elements” 1) there’s some private property, that 2) the government plans to take, for 3) a public use, after 4) making just compensation to the owner of the property.
Wayne Manor is clearly the private property of Bruce Wayne. Yes, even though the federal government seized Wayne Enterprises’s assets, Wayne Manor would probably still have been Bruce’s property. Remember, Wayne Enterprises was a corporation. The reason a business incorporates is to protect the property of the owners from lawsuits. After the corporation is created, it becomes a legal entity of it’s own and is solely responsible for its actions. If the corporation is sued, those harmed by the corporation can seize the corporate assets but not the assets of the corporation’s owners, that is to say the shareholders.
When the Wayne family established Wayne Enterprises, none of their lawyers would have allowed the Waynes to transfer ownership of Wayne Manor over to the corporation. Such an act would have completely negated the whole reason behind creating the corporation in the first place, limited liability. An attorney would have to be the Chief O’Hara of lawyers to let a client do something that stupid. So let’s assume, even after the Feds seized Wayne Enterprises, Bruce Wayne still owned Wayne Manor.
The government wanted to take Wayne Manor and convert it into a hospital to house the criminally insane, which would be a public use. The only question left would be the just compensation element.
Usually the just compensation happens this way. The government makes an offer which it considers to be fair market value for the property. Generally it’s a lowball offer, because we all know the government never overpays for anything. The property owner rejects the offer as too low and makes a counter offer of what the owner thinks is fair market value. Generally it’s high. The two parties negotiate over what is a fair market value for the property. If they reach an agreement, that amount is paid and the government takes over the property. If the two parties can’t reach an agreement, then they go to court and there’s a condemnation hearing during which the court will determine fair market value.
Sometimes the property owner doesn’t want to lose his property. So he might argue that the taking isn’t for public use. Again there’s a condemnation hearing, this time to determine whether the intended use is really a public use. If the judge rules it is a public use, the condemnation goes forward. I’ve never been able to figure out why these are called condemnation proceedings. No one is condemning the property, they’re just putting it to a new and different use.
None of those steps happened in the case of Wayne Manor. Why not? It wasn’t because the story got the law wrong. It was because Bruce Wayne knew he presently didn’t have the assets needed to maintain Wayne Manor or, in all probability, pay its property taxes. Bruce also believed his father, a doctor who advocated for better treatment of the mentally ill, would have given Wayne Manor to the city in the face of this emergency were he still alive. So Bruce voluntarily agreed to the condemnation proceedings and gave up Wayne Manor.
Bruce apparently believed in the old concept of noblesse oblige. And that makes him a better man than I am. Me, I would have held out for some money from Gotham City. Maybe I wouldn’t have soaked them, but if I just lost my personal fortune and was sitting on a house that was easily worth ten or twenty – and more probably thirty or forty – million dollars that the government wanted to buy, I would have wanted a little something something to get myself back on my financial feet.
But Bruce asked for nothing. He let his ancestral home go not for a pittance, not for a song but for nothing. Because he felt it was his duty. With a sense of noblesse oblige that strong, had Bruce lived back in the times of Caesar, he would have been the noblesse Roman of them all.
Repeat 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, inGreen 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 thatDavid 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.
Insanity, they say, is hereditary; you get it from your kids. Not me. My insanity comes from comic book stories. Comic book stories like Batman: The Dark Knight # 29.
This story featured as its bad guy one Abraham Langstrom. Unlike Tevya, Langstrom was a rich man. Not just the one percent rich, he was in the one percent of the one percent. He was so rich, he used 50 dollar bills to light 100 dollar bills then used them to light his cigars. He was also a self-styled corporate raider of such ferocity that even William Quantrillwould have thought Langstrom gave raiders a bad name.
Langstrom considered himself an overlord, one of the ones who had to make tough choices to “ensure that the system runs smoothly for those who matter.” To Langstrom a poor or homeless man was, “a bum who bloodsucks valuable resources from contributing citizens, straining Gotham’s social services cashing another welfare check.” I’m guessing Langstrom wasn’t one of those “compassionate conservatives” you hear about.
Because Langstrom considered himself to be an overlord who had to make the tough choices, it shouldn’t surprise you that he made several. And because he’s a man named Langstrom in a Batman story, it shouldn’t surprise you that Abe’s son, Kirk, was the man who invented the Man-Bat serum. Nor should it surprise you that Not-So-Honest Abe’s tough choice involved said Man-Bat serum.
The tough choice that Abe made was to drink the Man-Bat serum and become a Man-Bat. Then he hunted down the homeless who took from his city without contributing to it, killed them, and sucked their blood. Yes, vampire imagery in a story about a ruthless one-percenter. The subtlety boggles the mind.
Because this is a Batman story, it should also not surprise you that Batman got on Abe’s trail. I mean, what kind of Batman story would it be if he never went after the bad guy? What might be a surprise to you, however, is that…
SPOILER WARNING!
Batman caught him. Hey, nowadays so many of the comic book bad guys get away at the end of the story, telling you that Batman actually caught one is something of a spoiler. But Batman catching the villain wasn’t the end of the story. The ending was…
SPOILER WARNING!
when the jury found Abraham Langstrom not guilty by reason of temporary insanity. Which is where my own insanity came into play. As in these things drive me crazy.
The doctor who taught my law school Law and Psychiatry course told us that there isn’t any such thing as temporary insanity. Temporary insanity argues that the defendant was insane at the time of the criminal act, but the insanity didn’t last and the defendant is feeling much better now. It’s argued in an attempt to have the defendant found not guilty by reason of insanity but avoid having him committed to an asylum afterward. The regular insanity verdict does the exact same thing. So, like landing gear on an ocean liner, a temporary insanity verdict isn’t necessary.
In the United States a defendant is found to be not guilty by reason of insanity – or NGRI, because only a crazy person wants to keep typing “not guilty by reason of insanity” over and over – when he commits a crime and, at the time of the criminal act, he had a mental defect or illness that so affected him that he did not know the wrongfulness of his act. (Yes, I know I’m using the dreaded universal masculine here. Are there any women out there who want to complain because I’m not calling them insane?) Anyway, insanity only concerns itself with the defendant’s mental condition at the time of the criminal act. It doesn’t concern itself with the defendant’s mental condition either before or after the crime.
Say a man has mental illness which gives him the delusion that another man is a Great White dropped out of the sky by a Sharknado, so kills him. He would be NGRI. He had a mental illness. His mental illness gave him a delusion and because of that delusion, he didn’t know the wrongfulness of his act. After all, it’s not against the law to defend oneself from a shark. It might also not be against the law to kill someone to prevent him from making Sharknado 3, but that’s another column for another time.
If the defendant was found NGRI, the judge can’t send the defendant to prison. Remember, the NG part of NGRI is “not guilty.” The defendant wasn’t convicted of the crime, so he can’t be sent to prison. That would violate the defendant’s Fourteenth Amendment not to be deprived of his liberty without due process of law. Instead, the judge will order that the defendant undergo treatment for his mental illness. And, because the defendant was not guilty, the treatment must be in the least restrictive environment consistent with the defendant’s treatment. Anything harsher would also violate the defendant’s aforementioned right to liberty.
So what happens after an NGRI verdict? The judge will order doctors to perform a mental evaluation of the defendant. If the doctors find he is still mentally ill, they will make a recommendation of what treatment is the least restrictive.
If the defendant is violent, the doctors will recommend the defendant be confined and treated in a high security asylum for the criminally insane such as Arkham. If the defendant is not violent, the doctors might recommend treatment in a less-restrictive mental health institution. And if the defendant’s mental illness can be controlled with treatment and medications so that he doesn’t manifest any further symptoms of the mental illness, the least restrictive environment would be supervised release with the condition that the defendant continue taking his medications.
Defendant’s who have been found NGRI are continually evaluated for their present mental condition. If the doctors ever determine that the defendant no longer has any mental illness, they will tell the judge that the least restrictive environment is outright release. If the judge agrees, the judge must order the defendant to be released. Under the Fourteenth Amendment, the defendant can only be confined in a mental health institution for as long as is required to restore his or her mental state. If he is cured, then he must be released.
So what would really have happened in Langstrom’s case is not a jury finding of temporary insanity. The jury would have found Langstrom NGRI. Doctors would have evaluated Langstrom. Those doctors would have determined that Langstrom had been insane because of the effects of the Man-Bat serum but now that it wasn’t in his system, he was no longer mentally ill. Then the judge would have ordered Langstrom released. See, the NGRI verdict does everything that a temporary insanity verdict could do. So the temporary insanity verdict is unnecessary.
On the other hand, maybe I should hope that there is such a thing as temporary insanity. After all, Batman wasn’t insane in his early days, but he sure acts like he is now. And the Batman fan in me has got to hope that the condition isn’t permanent.
