The fate of the Abomination was revealed in the Agents of SHIELD episode TRACKS: held in a cryo-cell in Alaska.
Is such a punishment Constitutional?
An Abomination in New York
As a preliminary matter, there would be Federal jurisdiction for the US soldiers killed during the battle of the Bronx. See, United States v. Gamez, 301 F.3d 1138, 1148 (9th Cir. Ariz. 2002), citing 18 U.S.C. § 1114, “Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government . . . while such officer or employee is engaged in or on account of the performance of official duties . . . shall [in the case of murder] be punished . . . under section 1111.”
Blonsky could have been tried and convicted of all others killed and injured in New York under a separate state action. However, Rikers Island would be a big play pen for the Abomination, raising the challenge of how to incarcerate the prisoner. The Governor of New York and Mayor of New York City wisely made the economically smart decision and let the Feds handle imprisoning the Abomination.
Federal law states that murder is “the unlawful killing of a human being with malice aforethought.” 18 USCS § 1111(a). First degree murder includes the “willful, deliberate, malicious, and premeditated killing” of a person. Acts committed resulting in death that include arson, escape, murder, kidnapping, treason, and espionage are also first degree murder. Id.
The statute does not say “cryo-cell.” Suspended animation could be between execution and life in imprisonment. Would this violate the 8th Amendment?
Purpose of the 8th Amendment
The Eighth Amendment to the US Constitution prohibits the cruel and unusual punishment of prisoners, which embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency,” prohibits punishments which are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828-829 (7th Cir. Wis. 2009).
Courts have stated conditions such as denuding prisoners and exposing them to bitter cold in solitary confinement cell for eleven days, depriving them of basic elements of hygiene such as soap and toilet paper, in barren filthy cells without adequate heat would constitute cruel and unusual punishment in violation of the Eighth Amendment. Wright v. McMann, 387 F.2d 519 (2d Cir. 1967).
Off to Alaska
The Abomination was a US soldier whose body, and likely his mental state, was altered by medical experimentation. The first half of these procedures were in the line of duty; the second experiment was not. As such, Blonsky might have had an “insanity defense” that precluded him from being executed. Moreover, there likely is an 8th Amendment duty for SHIELD to medically treat the Abomination to turn Blonsky back into a human being.
Mental defenses aside, there is still the practical issue of where to imprison someone who is 10 feet tall, bullet proof and can knock down buildings.
Federal law gives the following punishments for first degree murder: execution or life in prison. There is no question that the attorneys for the victims and the insurance industry would have demanded a death sentence, but the prosecution had a problem: Can we actually kill the Abomination in a way that complies with the 8th Amendment?
Executing the Abomination could prove difficult. It would be very hard to give him an lethal injection. Moreover, traditional execution methods (such as electrocution) that have been found unconstitutional would likely fail to actually kill Blonsky. While states such as Utah allow prisoners to select their method of execution, such as a firing squad, shooting the Abomination with anything below a low yield tactical nuclear weapon probably would just tickle him. Andrews v. Shulsen, 802 F.2d 1256, 1275 (10th Cir. Utah 1986).
The 8th Amendment prohibits “mutilation and violence” to execute someone, so options such as launching the Abomination into the Sun would quickly violate the Constitution.
Constructing a prison to physically hold the Abomination would be both expensive and likely not possible with existing technology, especially since Reed Richards is with another movie studio. Moreover, it would effectively be solitary confinement for the protection of other prisoners, guards and tri-state area. This raises the issue that there is “a line where solitary confinement conditions become so severe that its use is converted from a viable prisoner disciplinary tool to cruel and unusual punishment.” Thomas v. Bryant, 614 F.3d 1288, at *1311 (11th Cir. Fla. 2010), citing Gates v. Collier, 501 F.2d 1291, 1304 (5th Cir. 1974).
Incarcerating Emil Blonsky in an Alaskan cryo-cell is likely the only option for imprisonment. As such, it would be Constitutional, given the lack of available options to remove his super-powers or build a traditional prison capable of holding him.