united-states japan law-in-fiction
Is it legal to put a death row inmate in harm&#39;s way if their execution is near?
<p>In <a href="https://en.wikipedia.org/wiki/Death_Note" rel="noreferrer"><em>Death Note</em></a>, a serial killer named Kira is killing the world's criminals.  All he needs is a name and a face.  It's not too long before countries realize someone is targeting criminals and hire a detective L to find him.</p>
<p>Early in the story L has a news conference in Japan.  His full name is &quot;Lind L. Tailor&quot; and he vows to track down Kira.  Kira is watching the broadcast, and uses his power to kill Lind L. Tailor while he is live on TV.  The real L takes over the broadcast and explains that Lind L. Taylor was a death row inmate that was going to be executed today, and Kira didn't kill the real L.</p>
<blockquote>
<p>if you did indeed kill Lind L tailor the man you just saw die on
television I should tell you that he was an inmate whose execution was
scheduled for today that was not me.  The police arrested him in
absolute secrecy so you wouldn't have heard about him on TV or through
the internet.</p>
</blockquote>
<p>Would this be legal for L to use prisoners to prove his theories about Kira?  The story is set in Japan, but would this be illegal in the U.S.A.?</p>

<blockquote>
<p><em><strong>would this be illegal in the U.S.A.?</strong></em></p>
</blockquote>
<p>This would almost certainly fail under the <a href="https://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution" rel="noreferrer">US Constitutions 8th Amendment</a> as being a &quot;cruel and unusual punishment&quot;:</p>
<blockquote>
<p><em>Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted</em></p>
</blockquote>
<p>While the inmate has been sentenced to execution, they are still afforded a lot of protection and are entitled to a stay of execution at any point (which is why there is typically an open telephone line to the state governor etc right up to the point at which the execution starts).</p>
<p>Being deliberately put in harms way to catch a killer just because they have been sentenced to execution would be both a cruel and an unusual punishment.</p>

<p>In the United States, execution methods must be authorized by law. The currently permitted execution methods vary from state to state. <a href="https://deathpenaltyinfo.org/executions/methods-of-execution" rel="noreferrer">According to the death penalty information center</a>, the methods approved in at least one state are:</p>
<ul>
<li>Lethal injection</li>
<li>Electrocution</li>
<li>Lethal Gas</li>
<li>Hanging</li>
<li>Firing squad</li>
</ul>
<p>Notably absent from this list of execution methods is &quot;Death Note&quot;.</p>
<p>So before this plan could be put into practice, the house of at least one state would have to make a law which permits this execution method. And considering that the death penalty and the way it's applied is a very controversial topic, it would be very difficult to do this without creating any media attention.</p>

<blockquote>
<p>Would this be legal for L to use prisoners to prove his theories about
Kira?</p>
</blockquote>
<p>No (unless the prison gave informed consent to this risk, perhaps in exchange for some favor for his family).</p>
<p>But, suppose that the next of kin of the prisoners sued the Japanese government for wrongfully endangering the decedent who was killed by Death Note. (As it happens, death by Death Note is not itself in this instance any more painful than death by a valid means of execution in Japan. Indeed, it might even involve less suffering and less dishonor for the prisoner.) The appropriate amount of damages for the wrongful death of a murderer with just hours left to live would probably be lower than the appropriate amount of damages for anyone else. They might even be merely nominal damages (e.g. 100 Yen).</p>
<p>It is probably also a crime (e.g. reckless endangerment of someone in the custody of the state), but the prosecutor and law enforcement are likely to look the other way and decline to enforce the criminal law in this situation.</p>
<p>Of course, any legal liability, civil or criminal, requires the court to determine that a reasonable person would believe that Death Note deaths were possible at all, and that this death was actually caused by the involvement of the prisoner in the scheme and was not merely a coincidence. In real life, those would be insurmountable barriers to civil and criminal liability, but this is, by assumption, not a real life situation. The cause that would be revealed by an autopsy, if I recall correctly, would be heart attack or some similar natural cause, in this particular instance.</p>
<p>While not strictly relevant, it is also helpful to know that in Japan (one of the relatively few developed countries that retains the death penalty), unlike most other death penalty jurisdictions, inmates on death row do not have a right to advanced notice of their execution date, and generally do not know what the date will be (sometimes days in the future, sometimes years) until a matter of hours before they are executed. This is a feature of the Japanese death penalty that human rights activists have criticized.</p>
<blockquote>
<p>The story is set in Japan, but would this be illegal in the U.S.A.?</p>
</blockquote>
<p>Essentially the same analysis applies, although the exact legal authorities cited in support of this conclusion would be different.</p>

<h2>Well, could a <em>normal person</em> consent to be a decoy?</h2>
<p>Put it this way.  If they had walked up to any random person on the street and said &quot;You have the right appearance for us to use <strong>as a decoy</strong> for a famous person. As implied by the word &quot;decoy&quot;, there is danger involved&quot;.</p>
<p>That random person would certainly have every right to agree to the arrangement.  In fact, they do so everyday.  We can say this with confidence, and lay it down as a foundation.</p>
<p>So the question remaining on the table is whether a <em>death row inmate</em> could consent to this. From the inmate's perspective, I don't know of anything in law that would cause their conviction to <em>strip them</em> of the right to agree to such an arrangement.</p>
<p>And they might find it a great deal more enjoyable as opposed to the usual lethal injection, <em>especially</em> if there are incentives such as clemency if they survive.  So the probability of finding an agreeable death row inmate is high.</p>
<h2>Could the corrections system let the inmate do that job?</h2>
<p>From the legal system's perspective, the question would be whether it was legal to permit the death row inmate to take that job.  For the system, the legal risk is that the whole deal goes sideways and the inmate <strong>uses the opportunity to escape</strong>: tearing through the countryside on a crime spree.</p>
