Luke Cage gained his enhanced strength and bulletproof skin from an experimental treatment at Seagate prison after injuries sustained from a beating orchestrated by corrupt prison guards. See, Marvel’s Luke Cage on Netflix, Episode 4, “Step in the Arena.”
Forcing prisoners to fight and conducting medical experiments without their consent are massive Civil Rights violations. The Eighth Amendment prohibition of cruel and unusual punishment includes anything from “physically barbarous punishments” to punishments that are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” See, Bailey v. Lally, 481 F. Supp. 203, 218-19 (D. Md. 1979), citing Gregg v. Georgia, 96 S. Ct. 2909 (joint opinion) and Trop v. Dulles, 78 S. Ct. 590.
Recording prisoners fighting for online videos is a barbaric punishment that is incompatible with any standard of decency. Subjecting those prisoners to medical experiments would be a second Civil Rights violation.
Individuals have a “liberty interest in their bodily integrity” that is protected by the Due Process Clause of the Fourteenth Amendment. In re Cincinnati Radiation Litig., 874 F. Supp. 796, 810-11 (S.D. Ohio 1995) and Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994).
Courts take these rights serious. One case found that nonconsensual experiments with high doses of radiation supervised by military doctors that were performed by city physicians violated that right. Id.
Medical experiments on human beings were one of the dominating issues at the war crimes trials of the Nazis. The judgment from trial is known as the “Nuremberg Code.” The Code states the following on consent:
The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health and person which may possibly come from his participation in the experiment.
In re Cincinnati Radiation Litig., at *820, citing the “Nuremberg Code.”
Luke Cage clearly had his rights violated with being forced into fighting matches, threats, and being beaten. The medical experiment that saved his life is more complicated. Luke had been severely injured in a beating. Dr. Reva Connors (Luke’s future wife killed by Jessica Jones under the control of Kilgrave) took the dying Luke Cage to Dr. Noah Burstein’s lab for an experimental medical procedure.
Dr. Burstein did not attempt to get informed consent from Luke Cage on the medical experiment. Dr. Burstein had a personal duty to get Luke’s consent before engaging in the procedure. This could not be delegated to Dr. Reva Connors, as she was not performing the experiment. In re Cincinnati Radiation Litig., at *820.
Luke was in danger of dying, but was not incapacitated to give informed consent. Dr. Burstein could argue he acted in an emergency situation, however, that argument would be stronger if Luke had been unable to answer questions.
It is unlikely any of the prisoners at Seagate who were experimented on gave Dr. Burstein their consent. One prisoner experiment case had a multidisciplinary oversight committee composed of physicians and non-physicians, including professors of law, social work, pharmacology, and psychology. No such oversight was done at Seagate to vindicate prisoner rights. See, Bailey, at *213.
Seagage prison is a massive lawsuit waiting to happen in the Marvel Cinematic Universe. If only there was a fictional lawyer who could take the case…
