Bruce Banner, Juvenile Delinquent
This month’s column was inspired by a question from Emily, who asked about teenage Bruce Banner’s attempted bombing of his school in Incredible Hulk vol.2 #77-81 (“Tempest Fugit”). In the story (told through flashbacks) we learn that young Bruce Banner had an imaginary friend named the Hulk…an imaginary friend that encourages Banner to smash things. After some bullying incidents at the school, Bruce awakens to find the Hulk informing him that he (which is to say Banner under the control of the Hulk personality) has planted a bomb in the school’s basement. Banner defuses the bomb in time, but it turns out that it would have been a dud anyway. At the military’s insistence, no charges will be filed so long as Bruce and his family leave town.
With the background out of the way, here are the questions Emily had:
What if [the bomb] had gone off? Assuming he was a teenager, what sort of prison time could he have been slapped with for blowing up an entire school? If he was over 16, how much worse could the sentence have been? Would there be a retrial upon his turning 18 or 21? Would he be in juvie, or could he be sent to an adult prison?
In a juvenile case like this the answers to these questions are interrelated. It’s not 100% clear where the story takes place*, but we’ll assume New York for simplicity (and because Marvel likes to base its heroes in NYC).
* There’s a reference to a Beth Israel Hospital, but that could be in Boston, Manhattan, or Newark.
I. Juvenile or Adult?
The single biggest issue is whether Banner would be tried as an adult or considered a juvenile delinquent. Delinquency hearings have a lot of advantages. For example, they aren’t, strictly speaking, criminal trials, and the worst outcome is some months in a secure housing facility. By contrast, if Banner were tried as an adult for second degree murder, he could be looking at life in prison (more on that later).
So how do we decide if Banner is a juvenile or an adult? In New York it depends on his age and the alleged crime.
“Juvenile delinquent” means a person over seven and less than sixteen years of age, who, having committed an act that would constitute a crime if committed by an adult, (a) is not criminally responsible for such conduct by reason of infancy, or (b) is the defendant in an action ordered removed from a criminal court to the family court pursuant to article seven hundred twenty-five of the criminal procedure law.
N.Y. Family Court Act § 301.2(1). However, there’s a big exception for “designated felony acts.” Certain serious crimes can result in the defendant being tried as an adult even if they are less than sixteen years old. There several categories of designated felony act, but here’s the one most likely to apply here:
“Designated felony act” means an act which, if done by an adult, would be a crime: (i) defined in sections 125.27 (murder in the first degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the first degree); or 150.20 (arson in the first degree) of the penal law committed by a person thirteen, fourteen or fifteen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law
§ 301.2(8). As we shall see, if the bomb had gone off, Banner would likely have committed second degree murder and first degree arson, as well as several other crimes. Thus, he could be tried as an adult if he was over 16 (even if the bomb didn’t go off) or if he was 13-15 (if the bomb did go off). Only if the bomb didn’t go off and he was under 16 would he have any reasonable hope of being considered a juvenile delinquent.
II. What Are the Charges?
We’ll talk about some possible defenses later, but first let’s consider what Banner could be charged with.
The school was full of students at the time it was rigged to explode, and Banner indicated that an evacuation (a few minutes before the explosion) would be pointless because they wouldn’t be able to escape the blast radius in time. This suggests that, had the bomb gone off, it would have killed many people. In New York this is second degree murder:
A person is guilty of murder in the second degree when: 1. With intent to cause the death of another person, he causes the death of such person or of a third person
New York distinguishes first and second degree murder in a different way than some states. In many states first degree murder is distinguished by premeditation. In New York it is primarily distinguished by the victim (e.g. a police officer). So although Banner would likely only be guilty of second degree murder, that’s still a very serious crime, with a potential sentence of life in prison.
Next we have first degree arson:
A person is guilty of arson in the first degree when he intentionally damages a building … by causing an explosion or a fire and when (a) such explosion or fire is caused by an incendiary device … placed inside … such building …; or when such explosion or fire is caused by an explosive; or when such explosion or fire … causes serious physical injury to another person other than a participant …; and when (b) another person who is not a participant in the crime is present in such building … at the time; and (c) the defendant knows that fact or the circumstances are such as to render the presence of such person therein a reasonable possibility.
§ 150.20. That’s a fairly long definition, but detonating a bomb in an occupied school when Banner knew people would be present definitely counts.
So those are the potential charges. Does Banner have any defenses?
The biggest defense is insanity. This version of Banner suffers from persistent auditory and visual hallucinations (i.e. the Hulk is not something he actively imagines), carries on extended conversations with the Hulk, and finds himself acting unconsciously under the control of the Hulk personality. We aren’t psychiatrists, but it’s our understanding that those kinds of symptoms can be the basis of an effective insanity defense. Specifically, New York follows a version of the M’Naghten rules:
In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either:
1. The nature and consequences of such conduct; or
2. That such conduct was wrong.
N.Y. Penal Law § 40.15. In this case, Banner was apparently unconscious at the time that the Hulk personality took over and planted the bomb. Banner woke up in his room and evidently had no memory of going out that night to plant the bomb. In a multiple personality case, the defendant should be “treated as one person with regard to the insanity defense and … the jury should evaluate such defense in terms of the state of mind of whichever personality defendant was experiencing at the time of the crime.” People v. Napier, 261 A.D.2d 347, 348 (Sup. Ct. App. Div. 1999). This does complicate things a bit, since it appears the Hulk personality understands what it’s doing and knows that murder is wrong; it just thinks revenge is what Banner really wants, deep down.
So what if the jury doesn’t buy the insanity defense? Does Banner have any other defenses? What about the fact that he defused the bomb? Or the fact that it was a dud anyway?
If the bomb didn’t go off, Banner could still be charged with attempted murder and attempted arson. His defusal of the bomb could be the basis for a defense of renunciation.
it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.
N.Y. Penal Law § 40.10(3). Importantly, Banner was not motivated by a fear of getting caught, nor was he planning to try again at a better time, either of which would make his renunciation less than “voluntary and complete.” § 40.10(5).
The mere fact that it was a dud, however, would not help. Impossibility is not a defense to attempt in New York. § 110.10. And even if Banner had known that it was a dud, he could still be guilty of “Placing a false bomb or hazardous substance in the first degree”:
A person is guilty of placing a false bomb or hazardous substance in the first degree when he or she places, or causes to be placed, in or upon school grounds, a public building, or a public place any device or object that by its design, construction, content or characteristics appears to be or to contain, a bomb, destructive device, explosive or hazardous substance, but is, in fact, an inoperative facsimile or imitation of such a bomb, destructive device, explosive or hazardous substance and which he or she knows, intends or reasonably believes will appear to be a bomb, destructive device, explosive or hazardous substance under circumstances in which it is likely to cause public alarm or inconvenience.
IV. The Sentence
If Banner is considered a juvenile delinquent (entirely possible since the bomb didn’t go off, assuming he was 15 or younger), then the worst possible punishment would likely be 18 months in a secure facility. If he was tried as an adult, however, he could get anywhere from several years to life in prison, depending on whether the bomb went off or not, and assuming none of his defenses worked.
If he was considered a juvenile he would not be retried once he reached 16 or 18. Despite not being a criminal trial, juvenile delinquency proceedings do trigger double jeopardy. N.Y. Family Court Act § 303.2.
Given his renunciation of the attempt, his plausible insanity defense, the fact that no one was hurt, and the pressure imposed by the military, it’s believable that the local prosecutor would refrain from charging Banner for the attempted bombing of the school. It’s also notable that there were no charges for Banner’s possession of the bomb in the first place. It’s clear from the story that Banner (as opposed to the Hulk) built the bomb in the woods; it was only the Hulk that planted it in the school. Neither insanity nor attempt would excuse that.
All in all, “Tempest Fugit” is a decent Hulk storyline, but more importantly it gave us a chance to talk about juvenile offenders in a more concrete way than we usually do. Thanks again to Emily for bringing it to our attention!