Trek News Dispatch, part 1 of 2

This week, I wanted to comment briefly on recent news items that affect various different Star Trek eras/universes.

Nichelle Nichols

Allow me to begin with the report on Nichelle Nichols’ health. Nichols, 85, has understandably had her share of health issues, and fans will remember that the much-beloved, original ‘Lt. Uhura’ suffered a mild stroke back in 2015. Fortunately, there was no resulting paralysis. However, it has since been reported that she has been suffering memory loss. (I don’t know if it’s thought to be related.)

Original reports came this past May, when her son, Kyle Johnson, petitioned the court to have conservators appointed to manage Nichols’ health and financial decisions. It seems that her memory issues had allowed “certain individuals [to] unduly exert[] themselves into Ms. Nichols’ life to her detriment.” In conservatorship documents recently obtained by TMZ, Nichols’ doctor, Meena Makhijani, said that the actress does indeed have “moderate progressive dementia.” More specifically, she has “major impairment of her short-term memory and moderate impairment of understanding abstract concepts, sense of time, place and immediate recall.” However, there does not appear to be impairment to her “long-term memory, orientation of her body, comprehension, verbal communication, concentration, recognition of familiar people, as well as ability to reason logically and plan actions.”

This is sad news, as it would be with anyone. But, we can pray that Nichols’ conservators get her the care she needs, and that her family, friends, assistants, etc., work patiently with her as she deals with this condition. And, of course, we fans will continue to love and appreciate the beautiful, classy, sci-fi and cultural icon.

On the movie front, Star Trek 4 in the Kelvin universe is in jeopardy. Even before Star Trek Beyond was released, the powers-that-be announced they had already started developing the next film. Based on an idea by J.J. Abrams, it would involve some way — presumably time-travel — of teaming James Kirk with his late father, George, played briefly by Chris Hemsworth in 2009’s Star Trek. Both actors were reportedly “on board” and had deals in place.

A few months ago, rumors of a Quentin Tarantino-led Trek movie had people wondering if those plans would delay or even replace Star Trek 4. But, that doesn’t seem to be a problem. Rather, recent reports are that Star Trek 4 has hit a wall due to… money. Apparently, salaries for Hemsworth and Chris Pine (aka ‘James Kirk’) had not yet been finalized, and now “talks between the two actors and the companies making the new installment, Paramount Pictures and Skydance Media, have fallen apart, with both sides walking away from the table.”

Hemsworth and Pine

Pine and Hemsworth are big enough stars now that they can command big money. (E.g., Pine got $6 million for Star Trek Beyond.) I don’t begrudge them that. Also, according to reports, they are merely “asking the studios to stick to existing deals. Paramount, according to insiders, contends that Star Trek is not like a Marvel or Star Wars movie and is trying to hold the line on a budget.” So, Paramount was disappointed in the 3rd film’s profits. Fair point, but whose fault was that? Arguably not Pine’s, and certainly not Hemsworth’s.

Like many, I have been somewhat disappointed in the current Trek movies, so I wouldn’t be devastated if Star Trek 4 never happened. On the other hand, it would be a shame, especially since I think it’s at least partially fixable. (No, I don’t think they should recast either of the Kirks — especially the younger.) The more immediate option would be to give the actors more skin in the game, i.e., tying a certain bonus to the film’s profitability (as Pine did for Star Trek Into Darkness) or with a percentage of the take on the backend. The second thing would be to make the movie slightly less dependent on action and F/X and incorporate more of the tone and philosophical elements that the TOS and TNG-based films had. (Unfortunately, the one thing they can’t do is insert several years of the characters/actors working (and playing) together, which I think was a big factor in the success of (most of) those earlier movies.)

To be continued in a few days…

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The Xenomorph Dance

“That’s it, man. Game over, man. Game over! What the *%$! are we gonna do now? What are we gonna do?”  — Pvt. Hudson, Aliens

Longtime readers will remember my post from early 2015, in which I discussed plans for an Alien 5 movie by director Neill Blomkamp. With 20th Century Fox agreeing to do it and creator Ridley Scott aboard as a producer, plus Sigourney Weaver’s enthusiasm for the project, things seemed to be moving forward. At Scott’s request, Blomkamp agreed to hold off a bit while his Prometheus sequel, Alien: Covenant, was completed for release in 2017 — Blomkamp’s original target year. Fans (like me) were psyched for the Blomkamp film and willing to wait a little longer… but not much.

But, in January 2017, Blomkamp tweeted that the chances of Alien 5 finally being made were “slim”. Major bummer, man! Subsequent reporting had Scott saying the following in an interview:

“I think it will never see the light. There was never a scenario, just an idea that evolved into a pitch of 10 pages, I had to participate as a producer but it did not go any further because Fox decided that they did not want to do it. I had already done Prometheus and worked on Covenant.”

Sort of makes you wonder how much of Scott’s and Fox’s original support of the film was genuine versus just a way of keeping Blomkamp et al. pacified for awhile. To be fair, though, they probably did want to see how successful Alien: Covenant would be. As I recall, box office receipts were disappointing in the U.S. (as they had been for Prometheus) but pretty good worldwide, such that a third in the “Alien” prequel series is currently scheduled for a 2019 release. However, I do not see why Blomkamp’s project couldn’t be produced concurrently, as soon as Weaver and (hopefully) Michael Biehn are free. Meanwhile, however, Blomkamp recently signed on to direct RoboCop Returns, a sequel to the 2014 RoboCop remake.

Another concern voiced more recently by Scott is the pending merger of Fox with Disney. He is uncertain about whether or not Disney will want to continue the franchise, so his own plans for additional follow-ups could be in danger.

“It looks to me that the Fox deal is certainly going to go ahead with Disney, and I’ve been with Fox for a number [of] years now. I’m hoping I’ll still probably be there, so whether or not they go ahead with such a dark subject, being Disney, as ‘Aliens’ remains to be seen.”

Frankly, if the return on investment is still there, I don’t think he has much to worry about. Besides, Disney doesn’t just do family-friendly, G-rated (or even PG-rated) fare these days.

On another front, there is an interesting rumor now of a possible “Alien” series for the small screen — whether on regular network or streaming service, etc., is one of many unknowns. As per Kofi Outlaw at Comicbook.com,

“Speculation about the show and the limits of its budget is already leaning towards a series about colonists or colonial marines within the Alien universe. The series could indeed feature Xenomorphs from time-to-time, but also open the storyline up to new extraterrestrial threats, or possibly tying the Alien series a little closer to its cousins in the Prometheus saga, with threats like alien viruses or advance races like The Engineers.”

I am of two minds regarding this. I am concerned about a more limited budget and the ability to pull off something that has the look, feel, and intensity of an “Alien” movie. On the other hand, there are probably a lot of stories that could take place in the “Alien” movie universe and would benefit from a longer story arc. I like the ideas mentioned above, so if Fox is indeed thinking along these lines, then I am tentatively behind the project. You?

…And, Man, Are My Arms Tired!

I have been out of town for the past week on vacation, and I just flew back yesterday afternoon. So, I haven’t had much time to research/write a normal, weekly post. That said, I wanted to stay (almost) on schedule and managed to put together a short one.

“When Ethan Hunt Said ‘No’ to Superman”

As you may know, Henry Cavill plays a CIA agent in the hours-from-being-released Mission: Impossible – Fallout. There is a scene in which his character (‘August Walker’) and Tom Cruise’s (‘Ethan Hunt’) HALO jump out of a C-17 military transport plane. As Cruise and anyone he works with will remind us, he is highly-trained — hundreds of hours of his own time learning various skills — and does as many of his own stunts as he can. (Still, production on the film was delayed after Cruise broke his ankle jumping between buildings.) So, of course, he jumped out of the plane.

Cavill thought his training for this and other roles was sufficient to do the same, but star/producer Cruise put the kibosh on that idea.

“The day came and I was begging Tom: ‘I’m wearing a parachute, I’ve got some wind tunnel (training), surely I can just jump?’ And he said, ‘Henry, I know exactly how you feel. I get it, you’ve done every single stunt in the movie so far, but this one I can’t let you do. It needs specific training.'”

When he realized how dangerous and complex the stunt was, Cavill relented: “I was like ‘OK, fine, I’ll sit this one out, Mr. Cruise,'” he laughed.

Cavill has said for years that he would love to play another superspy, James Bond, a role he was actually considered for a few years back. Meantime, he has played Napoleon Solo in The Man From U.N.C.L.E., though that version of the character was actually a high-end thief who gets betrayed by a woman and blackmailed into working for the C.I.A. But, Cavill still has his eye on the Bond role. When asked (on “The Rich Eisen Show”) about the possibility of him succeeding Daniel Craig after his final Bond film (currently just “Bond 25” (2019)), Cavill said,

“That would be a lot of fun! We’ll see. I mean, if the opportunity comes my way, then I will definitely jump at it. But,… that’s up to them [i.e., probably producers Barbara Broccoli and Michael G. Wilson], not to me.”

I didn’t include Cavill in my fan-casting for 007, but I agree, he’d make a great one!

Review of Luke Cage, Season 2

“Look… We can take Door Number 1, 2, or 3. Guess what? All the prizes suck!” — Luke Cage

Continuing my tradition of reviewing every season of the Marvel/Netflix shows, I present my observations re season 2 of everybody’s favorite bulletproof brutha from Harlem, “Luke Cage”. (See review of season 1 here.) But, before I go any further, I must lay down the requisite…

SPOILER ALERT! SPOILER ALERT! SPOILER ALERT! SPOILER ALERT! SPOILER ALERT!

It was great to see Claire and Misty and Bobby again; not so much Mariah and Shades. More on that later. First, though, a few words about the primary newcomers: Bushmaster and Nightshade.

Not surprisingly, this version of John ‘Bushmaster’ McIver varies quite a bit from that in the comics. The comics version was indeed a muscular Black man from the Caribbean (though St. Croix, not Jamaica), but he wore a white and gold costume. He was a Maggia-connected crime boss whose main foe was Iron Fist and whose primary obsession was Misty Knight. He even hired Luke Cage to kidnap Misty. His strength and durability came from forcing Dr. Noah Burstein to replicate the process he used to transform Cage (aka Carl Lucas) back at Seagate Prison. No martial arts, no addiction to some nightshade concoction, and no connection to or grudge against the Stokes family.

I can see why the writers/producers changed several aspects to fit into the Netflix series story, but it still annoys me. The character (ably played by Mustafa Shakir) was better than season 1’s ‘Diamondback’, and at least as complex as ‘Cottonmouth’ had been. Still, I’m not sure I want him to return. (Plus, the Patois he and his Jamaican cronies (and family) spoke was a pain to try to follow, though I have to admit I got better at it as time went along.) His was a tale of vengeance, grounded in an inter-family feud fueled by murder & betrayal a generation ago. But, he seemed inconsistent in both his rationale and his brutality. I felt little sympathy for him, only for those who suffered because of their nearness to him.

While Tilda Johnson was never actually called ‘Nightshade’ on the show, the comic version is. That ‘Nightshade’ was a Harlem-bred sista with a penchant for revealing, black leather outfits. (That is, until she took over the name and full-body costume of ‘Nighthawk’.) Rather than a doctor with an affinity for “natural remedies”, the comics’ Johnson was a brilliant young student who used her extensive knowledge of genetics, cybernetics, and physics to build her criminal career. She apprenticed under Yellow Claw (who gave her the costumed identity of ‘Deadly Nightshade’), fought the likes of Captain America and SHIELD, escaped from prison and built a small criminal empire, only to be brought down by… Power Man and Iron Fist. At one point, she joined Misty Knight’s Crew of villains hired to fight other villains. Later, the vigilante Nighthawk saved her life, and she turned over a new leaf, becoming his partner/weaponeer/mission control.

Shakir and Dennis

Obviously, the comics version has quite a different look, vibe, and history than we see on “Luke Cage”. She develops connections of a sort to Luke and Misty on the show, of course, but they are very different. The connection to the Stokes family and legacy is totally new. So far, the TV version hasn’t done anything illegal, either, except maybe that one time she helped Bushmaster attack the nightclub. (Patty Hearst Syndrome?) The actress (Gabrielle Dennis) is certainly easy on the eyes, but I’m not sure how I feel about this version of ‘Nightshade’ or whether I want her to return.

Now, on to the rest of the show…

It was a pretty good plot, all things considered, and it really accomplished a lot. However, I feel I should at least mention the matter of pacing. As discussed in a previous post, even the best of these Netflix/Marvel series could benefit from slightly tighter pacing, and this was no exception. I can’t remember specifics anymore, but at a few points, things just seemed to drag a bit. I’m not quite sure how to fix this.

I do know that I would love to see more (super)heroics — fights, surveillance, rescues — by our heroes, especially Cage. What we did get to see was great when it involved the henchman and other normal folk. When it came to Cage’s fights with Bushmaster, though, Cage looked pretty stupid. It wasn’t until their final showdown that he seemed to have learned anything. Or, maybe he was just more focused?

Luke has always relied on his size and his fists, and the experiment gave him enhanced strength and a bulletproof hide. (Now, apparently, even the Judas-rounds aren’t lethal, either.) Most of the time, he can just plow through the punks and gangsters that come after him. But, after his encounters with Diamondback last season and Bushmaster this season, I hope he finally realizes that he needs to fight smarter. I don’t expect him to become a student of the martial arts, but I’m hoping Danny and/or Colleen can give him a pointer or two. Speaking of…

Despite my disappointment with the Iron Fist series and character, I actually didn’t mind that Danny Rand showed up here. He and Luke had some good scenes, especially the warehouse fight. He finally chopped some of the curls, which I thought gave him a more masculine look. He also seemed slightly less odd, more mature, more sure of himself. Still kind of annoying with the constant “be still” and chi stuff. But, I understand that he was trying to help Luke get “centered”, so he could be more at peace and more effective.

Shades and Mariah

I gotta say, both the writing and acting was particularly good. And the characters were not two-dimensional, either. As the story moved along, we learned that the main characters and their stories were much more complex than expected. Even Mariah and Shades (though I still dislike them). In fact, some of the best acting was a) in the argument between Luke and Claire (ep.4?), b) the dialogues between Shades and Comanche (ep.6), c) some of Misty’s stuff (both working the case and dealing w/ her injury), d) the bits between Luke (aka Carl) and his father (played by the late, lamented Reg E. Cathey), and even some of those scenes between Mariah and Shades and between Mariah and Tilda. Powerful stuff!

Regarding ‘Black Mariah’ herself, here’s a nice summary by Kim Taylor-Foster at “Fandom”:

“One of the most interesting things about Mariah Dillard is her ability to manipulate. And not only the people around her, but the audience too. On numerous occasions, we feel for her. Her crocodile tears work on us, and every time we fall for it. She’s not so bad, we think. Circumstances have made her like this; there’s some good inside; she’s misunderstood; she’s coming around – but every time she reveals she’s the unfeeling, selfish “monster” her daughter describes her as.”

Yep. Mariah had an interesting journey into darkness in these two seasons of “Luke Cage”, and I, for one, am happy that she finally met her gruesome end. (I actually anticipated how it was gonna happen, too.)

As in season 1, I wasn’t sure what to think of the Shades character, and I’m not sure how much of that is due to the writing and how much due to the acting. Regardless, I was actually a bit surprised that Shades finally said “enough is enough” to Mariah — even more so that he gave a full confession to the cops and helped to put her away! Despite the horrible things we have seen him do, we discovered that he has self-imposed limits, parameters within which he operates. As Mariah got increasingly brutal and involved in things she never could have imagined just last season (prior to killing her cousin, anyway), Shades found himself stretching his own limits, and not in a good way. I can respect his final decision, even if it was long overdue and there was, of course, a strong element of self-interest and self-preservation.

Misty Knight’s journey was entirely different but at least as interesting. The combination of dealing with her injury (followed by getting the prosthetic arm), trying to figure out her place in (or outside of) the police department, and then the specifics of the case(s) she was working on — made the more difficult by Cage, Det. Tyler, and even the late Det. Scarfe — all made for a physically and emotionally exhausting few days, I’m sure. While I’m happy that Misty’s value was recognized by the top brass who offered her the Captain’s position at the end, I’d rather see her move toward becoming a private investigator and teaming up with Colleen Wing, like in the comics. But, hey, at least she now has her bionic arm!

Misty and Luke kickin’ butt

As for our hero, Luke Cage, the dude has been put through the physical and emotional wringer yet again and, I think, has come out all the stronger for it. The character really is developing into a true hero, even as he stumbles through everything life throws at him. He’s often reluctant (especially at the beginning) and often makes mistakes. But, with the help and advice of family & friends (whether solicited or not), he pushes through and gets the job done. I would’ve liked if Claire had stuck around for more episodes, but I understand why she had to go, both character-wise and plot-wise. I’m sure it helped Cage to know that at least she was out of the line of fire, so to speak. After the various dominoes (and players) fell, someone was going to fill the power vacuum. Cage decided that he was the logical choice to save his home from the various criminal organizations, so he “stepped up”. I like it, though I also understand Misty’s reservations. It remains to be seen just how “dirty” he will get in his efforts to protect Harlem. But, we’ll probably have to wait until Season 3 for that.

After we were introduced last season to the reason for Cage’s estrangement from his father, Rev. James Lucas, I didn’t think the writers would pursue it any further. I was wrong. At first, I thought it was an unnecessary complication to season 2’s plot and, of course, Cage’s life. I also didn’t think I would like the Rev character. But, when I realized that he was genuinely penitent for his past marital infidelity and his treatment of Cage (er, Carl), I wanted them to make peace. And, lo and behold, they did! With Cathey’s subsequent passing, it’s a shame they won’t be able to follow up on this reconciliation.

As with the first season, intertwined in the plot was some “social commentary” — i.e., re racism, oppression, the struggle for minorities (especially Blacks) to “make it” in America, police corruption, etc. Also, as I said before, “If the ‘commentary’ had been more heavy-handed, it might have annoyed me; but, it did sound/feel authentic to me.” I will also note the constant use of the N-word. Unfortunately, that is probably also authentic. It was a bit jarring to me at first, but then I realized that this series is essentially a 13-hour, ‘R’-rated movie. So, nasty words and profanity is to be expected. In retrospect, I’m a bit surprised (and pleased) that other “harsh language” was not more common. Only one “love scene”, too, as I recall.

A few random comments:

o Is it just me, or did Cage’s hoodie in the first fight not get any bullet holes? All the others did.
o The ‘Night Nurse’ song was kinda stupid.
o If Hollywood ever needs someone to portray Rep. Maxine Waters (D-CA), Alfre Woodard would be perfect!
o Nice cameo by Colleen Wing! Both the scene in the dojo ring and the one in the bar were appreciated, as we got to see Misty come to terms with her injury & situation. Plus, we got a great fight scene!
o Misty sure adapted to her prosthetic arm in a hurry! Ya gotta love comic-book science….
o Did you catch the Stan Lee “cameo”?

I would like to think that this season was also the end of the Stokes/Dillard arc. I would really like to see someone/something totally different for Luke to battle in the presumed third season. But, given the way things were left, I’m guessing we will see Tilda/Nightshade return to “get what’s hers” (i.e., the nightclub) — possibly with Bushmaster’s help, possibly in competition with Bushmaster. I hope we’ll see more of Annabella Sciorra’s Italian mob-queen character, Rosalie Carbone. (If so, will Punisher show up? They have a history…)

Final score: I gave season 1 of “Luke Cage” a B/B+. Season 2 rates a little higher, I think — say, a B+, bordering on A-.

Fan-Cast: Captain America

“I fought your kind every day of that war, Zemo! You mocked democracy and said that free men were weak! Well feel this grip, Zemo. It’s the grip of a man who loves liberty! Look into the eyes of your foe, and know that he will die for his freedom! The world must never again mistake compassion for weakness! And while I live, it had better not!” — Captain America, Avengers, vol. 1, #6

Evans as Rogers/Cap

When the fourth Avengers movie comes out next year (2019), Chris Evans will be almost 38, and it will be his 10th film overall (including brief cameos) portraying the Sentinel of Liberty, Captain America. If you ask me, he could play the character for a few more years, but he might be getting a little tired of it, wanting more time to branch out into other roles. At the moment, Evans doesn’t have any other movies scheduled in which he plays Cap, and he confirmed this past March that Avengers 4 will be his last time as the Shield-Slinger. Rumor has it that Steve Rogers will die, and another hero will put on the flag costume and grab the shield — probably either Bucky Barnes (aka Winter Soldier) or Sam Wilson (aka Falcon), both of whom have taken on the mantle in the comics.

But, what if Marvel/Disney decided to go another way? What if they re-cast the Steve Rogers role, perhaps by bringing in a version from an alternate timeline? Or, they fake his death, only to bring him back after a little plastic surgery? (Hey! It could happen…) Don’t like those options? OK, let’s pretend we are in an alternate universe in which they are only now getting around to planning the MCU, and they’ve decided to start with Captain America, the First Avenger, instead of Iron Man or Hulk. Who should we cast? Hmmm…

Captain America

First, allow me to give a brief “origin story” / history / profile of the character from the comics….

Steve Rogers was a rather skinny, even frail, young man with a strong sense of honor and duty. He wanted desperately to help fight America’s enemies in World War II, but his slight physique kept him from meeting the physical requirements to join the Army. He was recruited by General Chester Phillips to participate in Dr. Abraham Erskine’s “Operation Rebirth”, a top-secret performance-enhancing experiment. With a combination of Super Soldier Serum and vita-rays, Rogers was transformed into a robust figure at the peak of human strength, speed, and agility. After combat training, Rogers was given a red-white-and-blue costume and similarly painted steel shield, then sent overseas. Later, his “uniform” was updated, and he was given his famously indestructible, disc-shaped shield of vibranium-steel alloy, designed by Dr. Myron MacLain.

Rogers went on several missions over the next few years, some solo, some with his partner (teenage Bucky Barnes) and/or a squad of soldiers. He also occasionally fought alongside other costumed heroes of the era (e.g., the Invaders). He became quite a hero and symbol for America and her Allies, fighting Nazis and other fascists, imperialists, and even a time-traveling Dr. Doom. Then, when he and Bucky were battling Baron Zemo in April 1945, an exploding plane apparently killed Bucky and cast Cap’s unconscious body into icy waters. His body was never recovered and he was presumed dead. That is, until decades later, when his frozen body was discovered in suspended animation in a block of ice. He was recovered by the Avengers, whose ranks he soon joined.

Over the following couple decades (longer in real-time, of course), Rogers fought innumerable fascists, communists, anti-nationalists, eco-terrorists, alien invaders, ninjas, evil secret societies, street gangs, fanatical militias, criminal organizations, supervillains of various types, demons, gods and demi-gods, etc. On occasion, he even mixed it up with a few superheroes and vigilantes. His personal rogues’ gallery would likely be topped by the Red Skull, Baron Zemo (both of them), and Hydra.

While Captain America has befriended many superheroes, including working with a few official junior partners (i.e., Bucky Barnes, Sam Wilson / Falcon, Rick Jones), he is best known for his membership in the Avengers. His inspiring presence and leadership abilities made him a natural leader of the team, whether on or off the battlefield, and he served in that role — off and on — for many years. There were times when he temporarily left the team, by choice or otherwise, but he eventually ended up back with them in some capacity. Rogers even spent brief periods using different noms de guerre — e.g., Nomad, the Captain — and a few civilian aliases. But, as Captain America, not only did Rogers become a prominent modern-day hero and the heart & soul of the Avengers, he also grew his Living Legend status as an icon and defender of liberty, justice, American ideals and patriotism.

Except for those storylines where he temporarily mutated or significantly aged, Steve Rogers has always been a handsome, square-jawed, white guy with blonde hair. Thanks to the experiment that gave him his enhanced abilities and an intensive exercise regimen, Rogers is quite muscular and athletic. More recent events would, I think, put him at roughly early- to mid-40s (ignoring the 60-70 years in suspended animation, of course), but he was born in 1920 and would have been in his early-20s when he was subjected to Dr. Erskine’s procedure. The Cap that emerged from the ice would’ve been roughly 25. Marvel’s wiki lists him at 6’2″, 220 lbs, and “a ‘perfect’ specimen of human development and conditioning.” (I would like to see someone cast who is between 6′ and 6’5″, with a physique that is believable for a near-superhuman with the martial and acrobatic training Cap has had.) As for personality, Rogers is kind, selfless, even-tempered, loyal, brave, very confident, but without the arrogance someone of his abilities and accomplishments might be expected to have. He is mostly serious, especially during a mission, but can relax and joke around a bit during down-time. Sometimes… maybe.

If the powers-that-be wanted (for whatever reason) to cast a 40-ish Steve Rogers, then I suggest one of the following: Ryan McPartlin (6’4.5″,b.1975), Johann Urb (6’4″,b.1977), Justin Hartley (6’2.5″,b.1977), or Trevor Donovan (6’2″,b.1978). They all meet the physical requirements. McPartlin played ‘Captain Awesome’ (just a nickname) on “Chuck”, Urb played ‘Vigilante’ on “Arrow”, Hartley has played both ‘Aquaman’ (sort of) and ‘Green Arrow’. Donovan hasn’t played a superhero, yet, but he’s quite young-looking and could play a 30-something character. On the other hand, if they wanted someone closer to Chris Evans’ age (b.1981), here are four more great choices: Dylan Bruce (5’11.5″,b.1980), Luke Macfarlane (6’2″,b.1980), Philip Winchester (6’1″,b.1981), or Travis Van Winkle (6′,b.1982). You may remember Bruce from shows like “Arrow” and “Orphan Black”; Macfarlane plays the older Jaqobis brother on “Killjoys”, though he has appeared in “Supergirl”, too; Winchester has been in “Strike Back” and “Fringe”, among others; Van Winkle currently co-stars in “The Last Ship”. Again, they’re all very physical actors, but Van Winkle would probably need to bulk up more than the others.

My preference is to go a bit younger. I considered both Chris Zylka (6′,b.1985) and Luke Bracey (6′,b.1989) but ultimately rejected them in favor of the following three gentlemen:

Alan Ritchson

My favorite candidate is Alan Ritchson (6’2″,b.1984), who I have had in mind for the role for several years — probably since I first saw him as Arthur Curry / ‘Aquaman’ on “Smallville”. Genre fans might remember him as ‘Gloss’ on The Hunger Games: Catching Fire, and he also played ‘Raphael’ in the recent Teenage Mutant Ninja Turtles films. Ritchson was in Lazer Team and made appearances on “CSI: Miami”, “Hawaii Five-O”, and “Black Mirror”. He was a regular as a cop on “Blood Drive”, and he will be portraying ‘Hawk’ in the “Titans” series premiering later this year. He has the perfect look and build for Steve Rogers, and he even has prior (and upcoming) experience playing costumed adventurers. This guy would make an awesome Captain America!

Greg Finley on ‘The Flash’

Greg Finley (6′,b.1984) is a lesser-known actor, but he has been in a few genre productions. For example, he appeared in Hypothermia, “Star-Crossed”, “The Flash” (as ‘Gridiron’), and “iZombie”, as well as episodes of “Law & Order: Special Victims Unit” and “CSI”. In that last one, he played an amateur — and non-powered, of course — costumed vigilante. (One of a small group, actually.) Thus, he was credited as ‘Male Superhero’. Finley is obviously a beefy, good-looking guy, and he might actually be a surprisingly good Captain America.

Armie Hammer

Probably the biggest name — not to mention, tallest actor — among my candidates is Armie Hammer (6’5″,b.1986), who teamed up with Henry Cavill (aka Superman) in The Man from U.N.C.L.E. not long ago. He has also appeared in J. Edgar, Mirror Mirror, The Lone Ranger (as the title character), Free Fire, Mine, and Sorry to Bother You. He also provided the voice of ‘Strong Arm’ in Stan Lee’s Mighty 7. Assuming he bulks up sufficiently for the role (as the other two would, I’m sure), I think Hammer could really make a great Steve Rogers and his alter-ego, too!

 

In addition to acting talent and an appropriate physique, the best choice would have a good measure of charisma and likability, as well. So, who do you think would be the best pick?

Happy Independence Day, y’all!

* All ideas copyright Christopher Harris, 2013-2018.

Superpowers and the Second Amendment

Once again, this week I’d like to look at some material from the book The Law of Superheroes by lawyers James Daily and Ryan Davidson. We have already examined some Fifth Amendment issues and some Eighth Amendment issues in the world(s) of comics. Next up, it only makes sense to address where the Second Amendment might have something to say about the use of superpowers….

Although some superheroes and villains have powers that are harmless or at least not directly harmful to others (e.g., invulnerability, superintelligence), many have abilities that have no or only limited uses apart from harm (e.g., Superman’s heat vision, Havok’s plasma blasts). Although the government may be limited in its ability to discriminate on the basis of mutant status or innate superpowers, could the federal government or the states regulate superpowers as weapons without running afoul of the Second Amendment?

The Supreme Court has relatively recently addressed the Second Amendment in two cases: DC v. Heller*1* and McDonald v. City of Chicago.*2* The first case dealt with the District of Columbia’s ability to regulate firearms, and (broadly speaking) the second case applied the same limits to the states via the Fourteenth Amendment. In particular, Heller held that the District of Columbia’s ban on possession of usable handguns in the home violated the Second Amendment. From those decisions we can get a sense of how a comic book universe court might address the issue of superpowers as arms.

The Scope of the Second Amendment

First, let us begin with the text of the amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”*3* This is a notoriously difficult sentence to interpret, but here is how the Court defined the individual terms.

“[T]he people” refers to people individually, not collectively, and not only to the subset of the people that could be a part of the militia.*4* “Arms” refers broadly to “weapons of offence, or armour of defence” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another,” and it is not limited to weapons in existence in the eighteenth century.*5* Interestingly, this suggests that defensive powers may also be protected by the Second Amendment, but for the sake of brevity we will only consider offensive powers as those are the kind most likely to be regulated.

“To keep and bear arms” means “to have weapons” and to “wear, bear, or carry… upon the person or in the clothing or in a pocket, for the purpose… of being armed and ready for offensive or defensive action in a case of conflict with another person.”*6* Taken together, the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation,” but the right does not extend to any and all confrontations — there are limits.*7*

The Court first addressed limitations established by past precedents: “the Second Amendment confers an individual right to keep and bear arms (though only arms that ‘have some reasonable relationship to the preservation or efficiency of a well regulate militia’).”*8* Further, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”*9*

Beyond that, there are lawful limits on concealed weapons as well as “prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”*10* Perhaps most importantly for our purposes, there is a valid, historical limitation on “dangerous and unusual weapons.”*11*

With the scope of the right established, let us now turn to whether the government could regulate superpowers under the Second Amendment.

Regulating Superpowers as Weapons

We may start with the presumption that a superpower may be possessed and used for lawful purposes such as self-defense. The question is whether a given power fits into any of the exceptions that limit the Second Amendment right.

The Human Torch

“Concealed Weapons”
First, many superpowers could be considered “concealed weapons.” Before the Human Torch shouts “flame on!” and activates his power, he appears to be an ordinary person. Could the government require a kind of Scarlet Letter to identify those with concealed superpowers? The answer is a qualified yes. The Constitution would not tolerate requiring innately superpowered individuals to identify themselves continuously. That would seem to violate the constitutional right to privacy and the limited right to anonymity. Furthermore, simply keeping concealed weapons is allowed (e.g., a hidden gun safe in a home). The real objection is to concealed weapons borne on the person in public.

Thus, the calculus changes when a superhero sets out to bear his or her powers against others in public (e.g., goes out to fight crime). Luckily, many superheroes already identify themselves with costumes or visible displays of power (e.g., Superman, the Human Torch). Beyond that, most states offer concealed carry permits to the public, usually after a thorough background check and safety & marksmanship training. It may well be that the Constitution requires that if a state will grant a concealed carry permit for a firearm then it must do the same for an otherwise lawful superpower.

“Typically Possessed by Law-Abiding Citizens for Lawful Purposes”
Whether this limitation encompasses a given superpower may depend on the number of superpowered individuals in a given universe and the balance of lawful superheroes to unlawful supervillains. If superpowered individuals are relatively common, which seems to be the case in the Marvel Universe, for example, and superpowered individuals are generally law-abiding and use their powers for lawful purposes, then superpowers would seem to be protected by the Second Amendment. If, on the other hand, superpowers are very unusual or if they are typically used unlawfully, then the government may be able to regulate such powers more extensively.

In most comic book universes powers are both relatively common and normally used for good, suggesting that they do not fall under this exception. However, if certain kinds of powers are more commonly associated with law breaking, then perhaps those powers in particular may be regulated, though in our experience powers of all kinds seem evenly distributed between heroes and villains.

“Dangerous and Unusual Weapons”
Here we come to the catchall. Superpowers are certainly unusual in an historical sense,*12* and they are unusual in the sense that in most comic book universes superpowered individuals are a minority. But perhaps it is the nature of the power that counts. If a superpowered individual is approximately as powerful as a normal individual with a handgun (though perhaps one with unlimited ammunition), is that really so unusual?

Wherever the line is drawn, it seems clear that at least some superpowers would qualify as dangerous or unusual weapons (e.g., Cyclops’s optic blasts, Havok’s plasma blasts). These are well beyond the power of weapons allowed even by permit, and their nature is unlike any weapon typically owned by individuals or even the police and military.

Havok vs. Cyclops

The Nature and Scope of Regulation

Given that some powers are likely to fall outside the protection of the Second Amendment, how could the government regulate them? We’ve already discussed the issue of concealed powers, but what about powers that fall into the other two exceptions?

The government would take a page from the way it regulates mundane firearms. First, all possessors of potentially harmful powers could be subject to a background check if they did not have the powers from birth. If they failed the background check, they could be forbidden to use the power (although use in self-defense might still be allowed by the Constitution). A registration scheme would be likely, subject to the limits discussed in reference to the Keene Act.

Second, exceptional powers could be subject to a permitting system including more thorough background checks and training requirements. Some powers could be expressly prohibited outside police or military use.

Third, superpowered individuals who have committed crimes — with or without using their powers — may be forbidden from using them or even be required to have their powers deactivated, if possible, in keeping with the Eighth Amendment issues discussed earlier. Following the decision in United States v. Comstock*13* it may even be permissible to indefinitely detain a superpowered criminal after his or her prison sentence was completed if it was not otherwise possible to prevent future criminal acts.

What about uncontrolled powers, for which merely forbidding the use isn’t enough? This probably falls outside the scope of the Second Amendment and is closer to the law of involuntary commitment. If a superpowered individual is a danger to himself or others, then he could be required to undergo de-powering treatment or be incarcerated for the individual’s protection and the protection of society.

There may be an alternative to incarceration or de-powering. In the real world, specialized drug courts offer treatment and rehabilitation rather than punishment for nonviolent offenders. “Super courts” could work with institutions like the Xavier Institute, which aims to teach mutants to control their powers and use them safely.

Thus, the Supreme Court’s current view of the Second Amendment, though politically contentious, would give superpowered individuals significant protection to keep and use their powers largely free from government regulation or interference, with some important limitations.


*1* 554 U.S. 570 (2008)

*2* 561 U.S. 3025, 130 S. Ct. 3020 (2010).

*3* U.S. Const., amend. II.

*4* Heller, 554 U.S. at 581.

*5* Id. at 582.

*6* Id. at 584 (quoting Muscarello v. United States, 524 U.S. 125 (1998) (Ginsburg, J., dissenting)).

*7* Id. at 591-96.

*8* Id. at 595 (quoting United States v. Miller, 307 U.S. 174, 178 (1939).

*9* Id. at 625.

*10* Id. at 627.

*11* Id.

*12* Not counting the Marvel Earth-311 continuity, in which superpowers appeared in the Elizabethan era. Neal Gaiman, Marvel: 1602 (2006).

*13* 560 U.S. (2010), 130 S. Ct. 1949.

There ya go! I feel a little better about using my superpowers in public, now. 🙂

P.S. As much as I’d love to discuss Second Amendment rights in general, I strive to keep real-world, political controversy out of this blog for the most part. So, if you comment below, please keep this in mind. Thanks!

Star Trek Ship and Crew Idea: USS Providence

Regular readers may remember a post I did last September, where I shared some ideas I had not only for the casts of TNG, DS9, and Voyager, but I also threw in a movie plot. In addition to familiar characters, it involved new crew members on two ships — USS Titan and USS Destiny. So, you shouldn’t be surprised that over the years I’ve also come up with ideas for other ships and crews. Of course, lots of fans do this, especially those who write fan-fiction or, more often, play Star Trek Online and other games. But, I don’t do either, so this is my only outlet for such ideas. So…

This week, I decided to share the ship/crew that I’ve developed the most. As before, the timeframe is the Earth year 2380s….

USS Providence
— Note: I originally envisioned this as a Nebula-class ship. But, I eventually realized that a ship of that size probably wouldn’t have room for anything like Ten Forward. So, if I wanted to keep my bartender, Farlin, I needed a bigger ship. I decided to go with something familiar, the Galaxy-class, which we know has the requisite recreational lounge area. It is also typically used for primarily exploratory & diplomatic missions, while still having in impressive array of offensive and defensive weaponry. Perfect.

Captain Nicodemus ‘Nico’ Chavez (Human male)
— of Spanish descent; 6′, 175 lbs, 41 std years
— married (w/o children), but his wife Michonne is a botanist assigned to the scientific research vessel USS Linnaeus
— very no-nonsense style while on-duty, but likes to play games & sports and joke around when off-duty
— comes from long line of Starfleet officers, of which he is quite proud
— this is his 4th ship assignment, 2nd as Captain (1st captaincy was on the Miranda-class USS Farrell, a scientific research vessel, on which his wife was also assigned; prior to that, they met and were married at the Ghellmer Science Institute on Betazed, where he was Chief of Security)

First/Executive Officer, Commander Venda ke’Prell (Orion female)
— 5’9.5″, 140 lbs, 32 std years
— escaped slavery at 17 (killing her brutal owner, though she rarely talks of this), worked odd jobs for 3 years and educated herself, applied/accepted to Starfleet Academy
— excelled in Communications and earned Sato-Uhura Award for Excellence as Lt. j.g. while assigned to DS6
— occasionally has nightmares & flashbacks about her youth as a slave which can be quite unnerving, but she is otherwise normal, somewhat reserved but well-liked among officers & crew
— this is her 3rd ship assignment but 1st as Commander & F.O.

Science Officer, Lt. Thaksin Chiang (Human male)
— of Thai descent; 5’9″, 160 lbs, 28 std years
— son of Federation Ambassadors Nahkon & Mei-Lo Chiang
— mathematical prodigy who also expertly plays 8 musical instruments, including Vulcan harp
— has a somewhat sarcastic tongue, though never nasty
— good friends w/ Farlin and Chag, and collectively they are referred to by others as the “Three Musketeers”

Chief Medical Officer, (Lt. Commander) Dr. Bazil Tamm (Trill male)
— 5’11”, 170 lbs
— Bazil is 35 std years old and 4th host to symbiont Tamm, who is 200+ std years (exact same birthday as Counselor Shellen)
— has been good friends with Shellen for half Tamm’s life
— very calming and compassionate demeanor
— specializes in epidemiology and gene research

Chief of Security/Tactical Officer, Lt. Commander Tresh (Andorian male)
— 6’1″, 170 lbs, 45 std years
— slim but strong, quick, and a master of several hand-weapons & martial arts; in fact, only Gralk has ever beat him in a match, but not often
— strict w/ his subordinates, but not harsh; normally cool-tempered
— enjoys 20th century Earth vids

Ship’s Counselor, Lt. Commander Val Shellen (El-Aurian male)
— 5’10”, 170 lbs, 200+ std years old (but looks 40-ish)
— exact same birthday as the Tamm symbiont, whom he has been good friends with for half their lives
— widowed and has one adult child, with whom he is estranged
— feels guilty over the circumstances of his wife’s death (he was among those rescued from the SS Lakul by the Enterprise-B in 2293, but she died there)
— used to run a private medical practice on Auria Prime before the planet’s destruction by the Borg, then spent a few decades as a professor and researcher before joining Starfleet in 2368 (i.e., roughly 12 years prior to being assigned to the Providence)

Communications Officer, Lt. Sithik Nerriss (Hrithi male)
— 6’2″, 195 lbs, 22 std years
— his race is reptilian humanoid, with leathery, dark-greenish skin; 4ft, tapering tail; slitted eyes w/ nictitating membrane; superhuman strength, reflexes, & sense of smell
— member of noble family on Hrith and first to serve offworld
— tries to downplay his family’s status on their homeworld and sometimes overcompensates in friendliness, agreeableness, & eagerness to please superiors
— picks up knowledge & skills quickly and was recommended for the position by Lt. Com. Tresh, with whom he had worked on Deep Space 11 during his first assignment (as an ensign)
— Note: Hrithi mature faster than most humanoid species, and he graduated Starfleet Academy at 18 std years

Chief Engineer, Lt. Chag (Ferengi male)
— 5’2.5″, 150 lbs, 43 std years
— joined Starfleet at age 35, for reasons yet to be revealed; previously served on Ferengi transports and marauders
— very resourceful, reminiscent of Rom
— often pretends to be more annoyed/irritable than he really is
— has an unusual fondness for “hoo-mons”, and his personal hero is Montgomery Scott
— is an amateur historian of advances in physics & engineering on various worlds
— Farlin and Chiang keep trying to get him to take up a musical instrument, but he doesn’t have the patience for it

Astrogator, Lt. Sandra Whitestone (Human female)
— of British descent; 5’8″, 135 lbs, 27 std years
— quite attractive but rather “bookish”, hard to get to know, and uncomfortable in social situations
— has a twin brother who teaches Earth Literature at a major university on Alpha Centauri IV
— in addition to scientific journals and technical papers, she reads fiction voraciously and is particularly fond of Earth’s 18th & 19th century romantic novels (which her brother teases her about incessantly but good-naturedly)

Helmsman, Lt. Ramon Calabrese (Human male)
— of Italian descent (1/8 Sicilian); 6’3″, 175 lbs, 29 std years
— a stereotypical Latin “ladies’ man”, very charming and romantic but somewhat shallow
— alternately teases and flirts with Lt. Whitestone, who never responds to his advances
— very talented pilot, despite his somewhat cavalier manner
— quite the “card shark”

Transporter Chief, Lt. j.g. Sana Shrinivisthani (Human female)
— of Pakistani/British descent; 5’4″, 125 lbs, 26 std years
— comes from a well-to-do family on Alpha Centauri IV (her mother is the Federation ambassador and her father a wealthy shipping tycoon) and was rather spoiled before being sent against her will to Starfleet Academy
— her favorite rotation was in astro-cartography, and she spends a lot of free time studying the charts and talking with those currently assigned to the A-C lab

Chief Recreational Officer (civilian or non-com?), Gralk (Klingon male)
— 6’8″, 320 lbs, 37 std years
— NOT surly, belligerent, or condescending to non-Klingons
— enjoys studying other cultures, especially their games, sports, & martial arts
— muscular and skilled in martial arts, but often relies too much on his size in combat
— a quick wit, deep voice, and hearty laugh
— certainly not your typical Klingon, but a person of great honor & integrity nonetheless

Bartender (civilian), Farlin (Bolian male)
— 5’7″, 350+ lbs, 43 std years
— uses antigrav mobile-chair to get around and hand-extensions to reach things
— quite jovial & optimistic, despite his physical hardship
— has a degree in music, plays several instruments, tutors children part-time, and enjoys discovering new musical styles/traditions from different worlds

Supervillain Sentencing and the Eighth Amendment

A couple weeks ago, I cited some material from the book The Law of Superheroes by lawyers James Daily and Ryan Davidson. This week, I have reproduced another section on a subject I’ve been thinking a bit about lately, especially the part about supervillain prisons.

On the “Supergirl” TV show, the DEO keeps various alien criminals — escapees from the crashed Kryptonian prison — that they have recaptured. As a government agency, presumably they have some legal basis for this. But, the heroes on “The Flash” have no governmental authority (as far as I can tell), yet they imprison captured supervillains — and keep them in very small cells. On “Arrow”, Oliver Queen doesn’t take many prisoners, but he has been known to keep one or two (e.g., Deathstroke) in a secret, underground cell on the island of Lian Yu. (Though, that may have been in association with A.R.G.U.S.) It makes me wonder if any of the villains/criminals’ right have been violated. (Not that I have much sympathy for them.)

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

Immortal Supervillains and Life Imprisonment

Life imprisonment appears to have emerged in the nineteenth century as an alternative to the death penalty. The Supreme Court formally recognized it as constitutional in 1974.*1* For most people, a sentence of life without parole is really just a sentence of a few decades. The issue is not limited simply to life without parole, either; courts can and do hand down consecutive life sentences. A defendant convicted of multiple serious crimes that do not reach the level in which life without parole is permitted may still be sentenced to enough prison time to guarantee that he’ll never be released, e.g., six twenty-year terms to be served consecutively. He’d have to come up for and be paroled for each one in turn, which amounts to a life sentence.

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

It may very well be, especially given the ongoing debate about the practice of incarceration in general. There have been cases in which judges have ordered the release of large numbers of convicts due to prison conditions, especially overcrowding.*2* But that aside, it seems plausible that the Supreme Court might well rule that imprisoning someone for centuries, in addition to being completely impractical and phenomenally expensive, is crueler than simply killing him or her. Thus, if capital punishment is unavailable as an alternative to an eternity in prison, whether because no capital crime was committed or because the jurisdiction does not allow capital punishment, then a very long but finite sentence — or at least the possibility of parole — may be constitutionally required.

Nigh-Invulnerable Characters and the Death Penalty

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

This uncertainty is problematic, because while the Supreme Court has repeatedly upheld the constitutionality of the death penalty and has never specifically invalidated a method of punishment on the grounds that it was cruel and unusual,*3* it has stated “[p]unishments are cruel when they involve torture or a lingering death.”*4* Decapitation has been specifically cited as a form of execution that is likely unconstitutional for being too painful.*5* Another hypothetical example is “a series of abortive attempts at electrocution,” which would present an “objectively intolerable risk of harm.”*6* Since we don’t know if a given method of execution would actually work for a regenerating or nigh-invulnerable supervillain, trial and error would be the only way to determine an effective method. Since regenerating characters are often unaffected by drugs, it may not be possible to mitigate pain. It seems likely, then, that the courts would rule that trying to carry out the death penalty would be unconstitutional for those who are unkillable or almost unkillable.

Interior shot of Negative Zone prison

Supervillain Prisons

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

In short, probably not. Even regular prisons are seriously depressing, so it’s already going to be difficult to prove that a prison in the Negative Zone is worse enough to be considered cruel or unusual punishment. As the Supreme Court has said:

“The unnecessary and wanton infliction of pain… constitutes cruel and unusual punishment forbidden by the Eighth Amendment. We have said that among unnecessary and wanton inflictions of pain are those that are totally without penological justification. In making this determination in the context of prison conditions, we must ascertain whether the officials involved acted with deliberate indifference to the inmates’ health or safety.”*7*

Furthermore, to be “sufficiently serious” to constitute cruel and unusual punishment, “a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.”*8* Minimal is the right word; prison officials “must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.”*9* This is a very low bar.

The emotional effects of the Negative Zone are not really part of the punishment but rather a side effect of the place. Because the Negative Zone is the only suitable prison for many supervillains, the side effect is arguably necessary. Further, the side effects are not controlled or intentionally inflicted by anyone. Thus, the effects are not inflicted wantonly (i.e., deliberately and unprovoked). Offering the inmates adequate living conditions and mental health care to offset the effects of the Negative Zone could probably eliminate a charge of deliberate indifference. Finally, it would be difficult to argue that imprisonment in the Negative Zone denies the minimum civilized measure of life’s necessities. “The Constitution does not mandate comfortable prisons,” as the Farmer court noted,*10* only humane ones, and the Negative Zone is probably not bad enough to run afoul of the Eighth Amendment under the circumstances.

Forcible Removal of Superpowers

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

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

Sabbac (Timothy Karnes version)

About a dozen states use chemical castration in at least some cases, and there does not appear to have been a successful challenge on constitutional grounds. This may in part be due to the fact that a significant percentage of the offenders who are given the treatment volunteer for it, as it offers a way of controlling their urges. If the person being sentenced does not object, it’s hard for anyone else to come up with standing for a lawsuit.*11* Either way, despite health and civil rights concerns, this appears to be a viable sentence in the United States legal system.

But is should not be hard to see that physically and permanently removing someone’s ability to speak is not exactly the same as putting a reversible (or even permanent) chemical damper on their sex drive. It’s entirely possible to live an otherwise normal life with a low sex drive, but being mute interferes with essential daily activities in a far more intrusive way. So while the idea of physical modification to the human body is not unconstitutional on its face, it remains to be seen whether this degree of modification would be permitted. For example, while chemical castration appears to be constitutional, it’s pretty likely that physical castration would not be. We can only say “pretty likely” because Buck v. Bell, a 1927 Supreme Court case that upheld (eight to one!) a Virginia statute instituting compulsory sterilization of “mental defectives,” has never been expressly overturned, and tens of thousands of compulsory sterilizations occurred in the United States after Buck, most recently in 1981.*12*

On the other hand, Karnes isn’t your run-of-the-mill offender. He’s possessed by six demonic entities and capable of wreaking an immense amount of destruction. Part of the analysis in determining whether or not a punishment is cruel and unusual is whether or not the punishment is grossly disproportionate to the severity of the crime.*13* This is, in part, why the Supreme Court has outlawed the death penalty for rape cases. If the crime as such doesn’t leave anyone dead, execution seems to be a disproportionate response.*14*

The Eighth Amendment also prohibits “the unnecessary and wanton infliction of pain,” including those “totally without penological justification.”*15* Here, though, there is a clear penological justification, namely the prevention of future crimes, and the laryngectomy, a routine medical procedure frequently used in those suffering from throat cancer, could be carried out in a humane manner without the infliction of unnecessary pain.

There are other criteria by which a punishment is judged, including whether it accords with human dignity and whether it is shocking or contrary to fundamental fairness. But in a case like this, necessity goes a long way, especially because the purpose of the operation is not retributive punishment but rather incapacitation. If the only way to prevent Karnes from assuming his demonic form is to render him mute, then it’s possible that the courts would go along with that, particularly if it proved impossible to contain him otherwise and the operation was carried out in a humane manner.

However, what if taking away someone’s powers could be done with no other side effects? In X-Men: The Last Stand and various stories in the comic books, someone develops a “cure” for mutation, which removes or mitigates a mutant’s powers without really affecting them in any other way. This is far more like the chemical castration situation, but unlike that, a “cure” wouldn’t even remove any functions a normal human has. It’s very unlikely that a court would recognize this as being unconstitutionally inhumane, provided their offense was serious enough to justify this rather harsh sentence.


*1* Schick v. Reed, 419 U.S. 256 (1974) (holding that reversing the Presidential pardon which reduced a death sentence to life without parole would be unconstitutional).

*2* See, e.g., Brown v. Plata, 131 S. Ct. 19190 (2011).

*3* See Baze v. Rees, 553 U.S. 35, 48 (2008) (“This Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.”)

*4* Id. at 46.

*5* Id.

*6* Id.

*7* Hope v. Pelzer, 536 U.S. 730, 737-38 (2002) (holding that handcuffing an inmate to a hitching post outdoors for several hours with inadequate water and restroom breaks violated the Eighth Amendment) (quotations and citations omitted).

*8* Farmer v. Brennan, 511 U.S. 825, 834 (1994).

*9* Id. at 833.

*10* Id.

*11* “Standing” is essentially having the right status to bring a lawsuit. Under Article III of the Constitution, courts only have jurisdiction over “cases and controversies,” and the Supreme Court has interpreted this to mean that the plaintiff has to have suffered some kind of actual injury. So a person can bring a lawsuit on the basis of injury to himself, but generally lacks “standing” to bring a lawsuit on the basis of injuries to someone else. The injured person has to do it. In this case, the mutant being sentenced would have to bring the lawsuit on his own behalf, so if he consents to the procedure, no one else is going to be sufficiently injured to have “standing.”

*12* Buck v. Bell, 274 U.S. 200 (1927); Paul A. Lombardo, Three Generation, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (2008) (documenting the history of compulsory sterilization in the United States); Eugenics Victims to Get Apology, Eugene Register-Guard, Nov. 16, 2002, at 2B (noting that sterilizations occurred in Oregon through 1981).

*13* Ewing v. California, 538 U.S. 11, 21 (2003).

*14* Kennedy v. Louisiana, 554 U.S. 407 (2008) (“As it relates to crimes against individuals… the death penalty should not be expanded to instances where the victim’s life was not taken.”).

*15* Hope v. Pelzer, 536 U.S. 730, 737-38 (2002).

Wow, that’s a lot to digest. But, I feel like a learned something — or, at least, got a better feel for how some of that legal stuff works and how it might work in a world with superpowered beings. I hope some of you are getting something out of these posts, too, ‘cuz I’ve got one more scheduled for a couple weeks from now. TTFN…

Three More ‘Guilty Pleasure’ Novel Series

“Humans can be impossible to understand. But, I don’t let it bother me.” — Chet

I know what it’s like to sometimes get stuck in a rut with your reading or just get in the mood to try something different, but you’re not sure what to try. I have a few family members and friends who read, too, so I sometimes go with recommendations from them. I also wander the aisles at the library, but that can be pretty much hit-or-miss.

So, as I have done a couple times in the past (see “Three Don’t-Mess-With-Me Novel Heroes” and “Three ‘Guilty Pleasure’ Teen Novel Series”), I’ve come up with three more series that you, my faithful readers, might want to consider checking out. Only the first one has a mild sci-fi flavor, and the “action” elements are more subdued than in others I’ve discussed. But, I enjoy them a lot and thought you might, too.

The “In Death” series by J.D. Robb (aka prolific romance novelist Nora Roberts) is one of the largest novel series I’m aware of. As of May 2018, there are 46 full novels in the series (plus a few short stories), though I’ve only read the first 22, so far. (She cranks out two each year, and #47 will be out this September.) The stories take place roughly 50-60 years in the future, so it was the advanced tech and socio-cultural changes that first intrigued me. It’s the characters that keep me coming back. That, plus the series is all about murder mysteries.

The central character is Eve Dallas, a no-nonsense, kick@$$, homicide detective/lieutenant for the New York Police and Security Department. She was abused and orphaned as a kid, so she comes with a lot of baggage. She’s also an excellent murder-cop who demands the same degree of care and dedication from those she works with. Over the course of the series, she gains a partner/mentee and, much to her surprise, a colorful group of friends. Even more surprising, she falls for and marries an incredibly handsome, sexy, charming, multi-billionaire and ex(?)-con by the name of Roarke. They make for an odd couple — gruff, impatient cop and smooth, mega-rich businessman — but they complement each other. Roarke’s skills, contacts, and money are both a blessing (at times) and an incredible annoyance to Dallas. But, in the end, they make it work and put away a lot of bad guys in the process.

If this piques your interest, I strongly urge (as usual) that you begin at the beginning: Naked in Death.

On the other hand, if you’re looking for something almost completely different from Eve Dallas and the “In Death” series, maybe the adventures — and I use that term very loosely — of Andy Carpenter will appeal. Andy is a good but rather lazy (not to mention somewhat unorthodox and lucky) attorney in a solo practice who comes into some money and can afford to be extremely selective in picking his cases/clients. Usually, there is a dog involved somehow, possibly even as a client and/or witness.

Andy loves dogs, especially his own, a particularly smart — just ask Andy — and lovely golden retriever named Tara. Andy is often assisted on cases by his P.I. girlfriend, Laurie Collins, who is in turn sometimes assisted by the rather large, mostly monosyllabic, scary-as-hell, eating machine known as ‘Marcus’. (Think Wesley Snipes / Michael Jai White, but with fewer words.) There is an assortment of other (semi-)regulars, too — a cop, newspaper editor, accountant, secretary, client-turned-partner, et al. — but you’ll just have to wait to meet them.

In addition to the fun characters, quirky humor, and entertaining plots, what I like about the series is that it’s located in northern New Jersey, where I used to live for many years. Well, not exactly where I lived, but close enough that I recognize cities & counties (e.g., Paterson, Sussex, Bergen, NYC) and highways (e.g., Rte. 80 and the NJ Turnpike) and can appreciate references to other local phenomena (e.g., the heavy traffic, mobsters). But, you don’t have to be a Jersey native to enjoy reading about the somewhat goofy, highly danger-averse, reluctant-to-take-on-any-case Mr. Carpenter, ‘cuz ya can’t help but like and root for him. (Start with Open and Shut.)

And, if you like dogs, I’ve got another recommendation….

Meet Chet. Chet the Jet. Chet is a smart, yet easily-distracted, German Shepherd and K9 Academy washout who adores his pal/partner at the Little Detective Agency, Bernie Little. Chet can follow a good bit of human conversation (in English), but he often gets confused when it comes to things like metaphors and slang. Also, he occasionally barks before he realizes he’s gonna, and his tail seems to have a mind of its own. Chet loves treats from Rover and Company (and just about anything else he sniffs out), hunting down leads with Bernie, and sinking his teeth into a “perp”. Chet is unusually concerned about finances, more so than Bernie is, but there’s not much he can do about it.

Chet also likes to tell stories about cases he and Bernie get involved in, which somehow end up in books for humans like us to read, beginning with Dog On It. Of course, he occasionally misses a few details, either because he wasn’t present to listen/observe or he got distracted by an odd scent or his mind wandered, thinking about snacks or that cute she-dog down in the valley or maybe some strange habit of humans. But, that’s another subject entirely…. If you like animals (especially dogs) and have a decent sense of humor, I think you’ll really like Chet. Bernie’s pretty cool, too. (Just ask Chet!)

If any of you actually try any of my book recommendations, please leave a comment below to let me know what you liked (or didn’t) about it. Thanks, and happy reading!

Evidence, Telepathy, and the Fifth Amendment

I recently started reading a book I found at the library titled The Law of Superheroes. It came out in 2012, but this was the first I’d heard of it. The authors, James Daily and Ryan Davidson, are a couple of lawyers who are also big-time comic book fans. They decided to combine their two areas of expertise to “explain and explore the hypothetical legal ramifications of comic book tropes, characters, and powers, down to the most deliciously trivial detail.” Pique your interest?

“You’ll learn about the basic principles of law in an engaging and accessible way through comics — from alternate universes and copyright laws to shape-shifters and witness testimony to contracts with the Devil.” (from the front cover flap)

I’m not very far along, but I found the following discussion/explanation — actually combined from two separate sections — interesting and thought I’d share it….

 

At first glance, a psychic would seem like the perfect solution to many evidentiary problems such as lying on the stand or failing to tell the truth. But would using a mind reader to verify a witness’s testimony actually stand up in court?

Relevance

First we must ask “is the evidence relevant?” Only relevant evidence is admissible, and Federal Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” This is a very low bar, and Federal Rule of Evidence 402 provides that relevant evidence presumptively admissible. But the question must still be asked, “Is a psychic’s claim about the contents of another person’s head relevant?”

We think the answer is yes. The psychic could be lying, but that’s true of any witness, and the jury must judge the psychic’s credibility just like any other witness’s. The psychic could be a fraud, but the judge could require that the psychic’s powers be proved prior to offering the substantive evidence. Federal Rule of Evidence 901(a) provides “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” By way of example, Federal Rule of Evidence 901(b)(9) gives “Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.” The accuracy and reliability of a psychic’s power fits that example.

Exclusion under Federal Rule of Evidence 403

Relevance is only the beginning of the analysis, however. Relevant evidence may be excluded under Federal Rule of Evidence 403 “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Of these, unfair prejudice is the greatest risk here.

The notes on Federal Rule of Evidence 403 state that “‘unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” A fact finder might unfairly prejudice a party by giving undue weight to the testimony of a psychic, possibly completely ignoring the testimony of the original witness. Psychics, after all, have supranormal abilities, and juries might be somewhat awed by them to the detriment of other testimony. However, “in reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.” It may suffice for the judge to remind the jury that it should also consider the testimony of the original witness.

Professor X

Personal Knowledge

Federal Rule of Evidence 602 requires that a witness have personal knowledge of the matter being testified about. This means that a fine but important distinction should be made. The psychic would not be testifying as to the actual events the original witness had personal knowledge of. Instead, a psychic would testify about his or her personal knowledge of what he or she read in the original witness’s mind. It’s the difference between Professor X’s saying “Magneto killed Jean Grey” and his saying “I believe the original witness remembers seeing Magneto kill Jean Gray.” This is a great example of why a psychic verification of a witness’s testimony does not mean that the witness’s testimony is necessarily accurate. Everything the psychic testifies about is ultimately coming through the lens of the original witness’s senses, understanding, and memory.*1*

Hearsay

Now we come to one of the biggies. The general rule under Federal Rule of Evidence 801 is that “‘hearsay’ is [an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion], other than one made by [the person who made the statement] while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

It’s a complicated definition, to be sure, but maybe we don’t have to address it. A person’s thoughts are not an oral or written assertion, nor are they a nonverbal action intended as an assertion. Of course, it is likely that in a universe with psychics and telepaths the Federal Rules of Evidence would be amended to include such things. Given that, let’s complete the hearsay analysis.

Assuming thoughts fit the first part of the definition (i.e., they are an assertion), then we know the second part fits as well, since the psychic is not the person who made the statement. The final part is whether the psychic’s testimony is offered to prove the matter asserted. For example, when Professor X says, “The witness remembers that Magneto killed Jean Grey,” is that being offered to prove that Magneto did, in fact, kill Jean Grey? We think the answer is no; rather than being offered to prove that Magneto killed Jean Grey, the psychic’s statement is only offered to prove that the witness is not lying. In lawyer-speak, we would say that the statement goes to the witness’s credibility, not the truth of the matter asserted.

The Fifth Amendment

So far we have assumed that the psychic was being used to verify a witness’s truthfulness. But what about using psychic powers to extract information from a witness who refuses to testify, such as a witness invoking the Fifth Amendment right against self-incrimination? [Now, we’re getting into some matters of constitutional law.] Before pursuing this, we must first ask what the Fifth Amendment actually protects.

X-ray brain connect

The Supreme Court has held that “the privilege protects a person only against being incriminated by his own compelled testimonial communications.”*2* So what is a testimonial communication? The Court explained in a later case that “in order to be testimonial, an accused’ communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.”*3* There are many kinds of evidence that are non-testimonial and may be demanded without running afoul of the Fifth Amendment, including blood, handwriting, and even voice samples.*4* Perhaps the best example of the distinction between testimonial and non-testimonial communication is that requiring a witness to turn over a key to a lockbox is non-testimonial, while requiring a witness to divulge the combination to a safe is testimonial.*5*

We need not wonder whether reading someone’s thoughts counts as testimonial communication, however. As the Court explained, “The expression of the contents of an individual’s mind is testimonial communication for purposes of the Fifth Amendment.”*6*

One might be tempted to argue that the Fifth Amendment shouldn’t apply because the testimony is the psychic’s rather than the witness’s (i.e., the difference between the witness’s saying “I saw Magneto kill Jean Grey,” and the psychic’s saying “The witness remembers seeing Magneto kill Jean Grey”). However, the Supreme Court actually addressed this issue in Estelle v. Smith.*7* In that case, a defendant was subjected to a psychiatric evaluation, and the psychiatrist’s expert testimony was offered against the defendant. The Court held that the expert testimony violated the right against self-incrimination because the expert testimony was based in part on the defendant’s own statements (and omissions). Thus, using an intermediary expert witness to interpret a witness’s statement will not evade the Fifth Amendment.

So psychic powers could likely not be used to produce evidence from a witness who invoked the Fifth Amendment. And, believe it or not, this issue actually has contemporary resonance. Although a far cry from the kind of psychic powers that Professor X is capable of, rechnologies like functional MRI (fMRI) may someday see regular use in criminal investigation. However, scholars and commentators are divided on whether fMRI-like tests fall under the scope of the Fifth Amendment (i.e., is it more like a blood sample or like speech?).*8* Time will tell whether the Fifth Amendment protects people from unwanted mind reading or not.

*1* In fact, Magneto was once suspected of killing Jean Grey, but the killer was actually an imposter, Xorn, who was killed by Wolverine for his trouble. See Chuck Austen et al., Of Darkest Nights, in Uncanny X-Men (Vol. 1) 442-43 (Marvel Comics June-July 2004).

*2* Fisher v. United States, 425 U.S. 391, 409 (1976) (emphasis added).

*3* Doe v. United States, 487 U.S. 201, 210 (1988)

*4* Id. at 210.

*5* Id. This distinction is of vital importance in the era of password-based encryption, and it is not entirely clear whether the Fifth Amendment protects passwords. One court decided the issue by holding that the defendant need not give up the password but rather only produce the contents of the encrypted drive. In re Boucher, No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb. 19, 2009). Thus, the protected evidence (the contents of the defendant’s mind) remained secret while the unprotected evidence (the contents of the drive) were discovered.

*6* Doe, 487 U.S. at 210 n.9.

*7* 451 U.S. 454 (1981).

*8* See, e.g., Benjamin Holley, It’s All in Your Head: Neurotechnological Lie Detection and the Fourth and Fifth Amendments, 28 Dev. Mental Health L. 1 (2009); Matthew Baptiste Holloway, One Image, One Thousand Incriminating Words: Images of Brain Activity and the Privilege Against Self-incrimination, 27 Temp. J. Sci. Techj. & Envtl. L. 141 (2008); Dov Fox, The Right to Silence as Protecting Mental Control, 42 Akron L. Rev. 763 (2009).

Was that suitably geeky for you?

P.S. If you’re interested, Daily also blogs on occasion here.