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In Death Note, 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.

Early in the story L has a news conference in Japan. His full name is "Lind L. Tailor" 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.

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.

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.?

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sevensevens
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    Another aspect that makes this unrealistic is that while police may have arrested Tailor in secrecy, that is not enough for a death penalty. A jury of his peers needed to indict him, and that verdict would have to be public. – Jann Poppinga Jun 14 '21 at 13:39
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    Note to self: write a question on Physics SE complaining about unrealistic moments in "Lord of the Rings". – Dmitry Grigoryev Jun 14 '21 at 14:41
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    IIRC Lind L. Tailor agreed to the charade because he wouldn't be executed if he survived Kira. It was a deal, not an order - that might change the answer a bit. – Izkata Jun 14 '21 at 15:24
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    "The police arrested him in absolute secrecy so you wouldn't have heard about him on TV or through the internet." That's... silly. It's so far beyond silly that it's Bad Writing. – RonJohn Jun 14 '21 at 15:50
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    @RonJohn I suppose an alternative might be that they arrested him under an alias, and/or long enough ago that it's fallen out of general public knowledge (spending between 10 and 30 years on death row is not uncommon...) – Chronocidal Jun 14 '21 at 22:23
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    @DmitryGrigoryev https://physics.stackexchange.com/questions/443260/if-an-object-would-be-too-tough-to-puncture-while-static-is-it-possible-to-pier Also, https://scifi.stackexchange.com/questions/46285/could-the-gold-actually-kill-smaug/77147#77147 – leftaroundabout Jun 14 '21 at 23:05
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    @Chronocidal what you describe isn't "absolute secrecy so you wouldn't have heard about him on TV or through the internet." It's bad writing by an alleged professional. – RonJohn Jun 14 '21 at 23:35
  • Yes it would absolutely be illegal. Your constitutional and legal rights continue pretty much until they pull the lever to send you to oblivion. Its still illegal to murder you. Its still illegal to beat or mistreat you. Etc.

    Though lets face it. Capital punishment is evil, these are not good people making these choices for the prisoner, these are murderers (in the moral sense) making choices for the prisoner with all the antisocial personality traits implied by that.

     – Shayne Jun 15 '21 at 13:36
  • @sevensevens That could be legal only after you explained how the penitentiary's duty of care allowed it.

    Otherwise, why would any prison governor bother with the expense of keeping any inmate on Death Row for even a few days, rather than just shove the poor guy straight into harm's way on Day One?

     – Robbie Goodwin Jun 15 '21 at 23:52
  • @Izkata If it was a deal, that really does change the picture. But still - if it was a deal in court, it's still an extra-legal method of execution. If was a form of pardon after a court verdict, it might still be unlawful. OP, please clarify, so someone knowledgeable can answer. – Jann Poppinga Jun 16 '21 at 07:17
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    The problem(s) with so many of this plague of bad SF movies and series nowadays is that 1) they're actually fantasy, there's very little real science in them, 2) the "fantasies" extend way beyond just the science, 3) they are poorly written, and 4) even for bad writing, they are extremely lazy in their writing. – RBarryYoung Jun 16 '21 at 20:00
  • It might depend on whether the prisoner is given a choice, and how likely the police or a judge think death is (or whether the police can get away with lying in court about why he was on TV). Compare it to, say, police legally asking a criminal or someone charged with a crime to wear a wire. – NotThatGuy Jun 16 '21 at 23:59
  • Interesting sidenote: According to my friend lawyer in Japan, the death caused by Death Note can't be proved scientifically, so they can't charge murderer with murder using the Death Note. at least in Japanese law. So it's probability of not getting accused by law is significantly low in Japan. Unless, the police found out the death note and test it's effect and it somehow got scientifically proved. – Skye-AT Jun 21 '21 at 04:18

4 Answers4

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would this be illegal in the U.S.A.?

This would almost certainly fail under the US Constitutions 8th Amendment as being a "cruel and unusual punishment":

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

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).

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.

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    How come it is even "punishment", not simply murder? A punishment is supposed be conducted pursuant to procedures established by law. What we have here is nowhere near that. – Greendrake Jun 14 '21 at 06:26
  • @Greendrake I never said it wasnt murder, attempted or otherwise, but the 8th Amendment is going to be the best prevention against this, versus an after-the-fact murder trial or any attempt at a attempted murder prosecution. The 8th Amendment would be what would stop some Governor somewhere from saying “lets use em as bait, heres a bill I sign into law allowing us to do that.” –  Jun 14 '21 at 06:29
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    How come the 8th Amendment is the first/foremost thing to stop the Governor from signing such a bill, not the very basic/ubiquitous prohibition to murder people? – Greendrake Jun 14 '21 at 06:39
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    @Greendrake we are talking about someone on death row, the whole “Governor cant make state murder legal” thing is well past. The only reason execution isnt classed as cruel or unusual at this point is because its been on the books for hundreds of years.... –  Jun 14 '21 at 07:16
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    Would there not be legal precedent for giving the prisoner a choice? Like "do this thing that might result in your death and we'll commute your sentence if you survive OR you can just be executed as scheduled"? – Shufflepants Jun 14 '21 at 14:28
  • I also can't imagine this would be any more legal in Japan (that is actual Japan, not the fictional version in this scenario) than it is in the US - does anyone know enough Japanese law to look into this? – Darrel Hoffman Jun 14 '21 at 15:07
  • @Moo is there no way one could waive their 8th Amendment rights, much like you can waive your 5th Amendment rights? – Ryan_L Jun 14 '21 at 16:19
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    Notably the President of the US has sweeping emergency powers, as does the President of Japan. That would certainly include having someone killed if there was a genuine need. – Richard Jun 14 '21 at 19:36
  • @Ryan_L yes, of course someone could volunteer for this, but theres no evidence of that being the case in the question asked. –  Jun 14 '21 at 21:00
  • @Richard I didn't know there was a President of Japan. Do you think of the prime minister? – Paŭlo Ebermann Jun 14 '21 at 22:25
  • @PaŭloEbermann - lol. Yes, that dude. The one whose head looks like a lollipop with a bad combover – Richard Jun 14 '21 at 22:28
  • Please note that similar and worse things have been done out of necessity in a state of emergency (not evacuating civilians before an air raid in WW2 because it would give the enemy information about decryption capabilities, hindering future war effort). I'm reasonably certain that if the existence of the Death Note became proven, it could lead to a state of emergency. Someone could use it to kill everyone in the government of every country, leading to the possible collapse of civilization and the deaths of millions or billions. Stopping them would make desperate measures acceptable. – vsz Jun 15 '21 at 17:28
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    The thing is: given all that is apparently NOT cruel punishment (eg. botched executions en mass ...), the death note "u dead now" method could be claimed as very very humane method, and with a very strong case even – Hobbamok Jun 16 '21 at 09:07
  • @Shufflepants: Yes, there is. I forget which state does it, but they offer inmates a choice of several methods of execution (Gas Chamber, Firing Squad, Leathal Injection.). However, there is a catch in that the option must have been on the books at the time of the inmate's conviction and sentencing. The state today has banned the first two options meaning a more recent convict does not have a choice. – hszmv Jun 16 '21 at 12:01
  • @Ryan_L: The 8th Amendment is not a Right of the People but a restriction on the Government (Namely the Judiciary which is charged with sentencing, but in this case the it would be the executive Branch). You can "waive your right" all you want, but the Government cannot comply with your request. It's similar to "Waiving" your 1A or 2A rights. You can do that... but that doesn't permit the government to make laws targeting you for a crime should you reneg on the waived right. – hszmv Jun 16 '21 at 12:13
  • One thing to consider is that in Furman v. Georgia, SCOTUS outlined four principles to consider in Cruel and Unusual Punishment, the first of which is "The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity", especially torture." Even if the fish does not bite, the worm would no doubt consider it torture for the duration of time that he is on the hook. Furthermore, in both the U.S. and Japan, public Executions are illegal, so a televised execution would be a violation of 8A and Japanese Law. – hszmv Jun 16 '21 at 12:27
  • Something about due process... There is a process. It sure does not include whatever this is. – RBarryYoung Jun 16 '21 at 20:02
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    Killing people in their cells the day before their execution date is what the nazis did. In many cases. And most people consider it murder. – gnasher729 Jun 16 '21 at 23:08
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In the United States, execution methods must be authorized by law. The currently permitted execution methods vary from state to state. According to the death penalty information center, the methods approved in at least one state are:

  • Lethal injection
  • Electrocution
  • Lethal Gas
  • Hanging
  • Firing squad

Notably absent from this list of execution methods is "Death Note".

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.

Philipp
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    Death by death note in this question is not a punishment, it's being carried out by a serial killer, not the state. The prisoner was offered something in exchange for being bait, his death wasn't the goal. – Ryan_L Jun 14 '21 at 16:18
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    The legality of executing someone via Death Note seems entirely irrelevant to the question. The death row inmate is just being used as bait, and the state performs no execution at all. It's clear that the private individual writing the Death Note is committing murder, but that has nothing whatsoever to do with whether the state can legally do the same thing. An executioner can legally electrocute a death row inmate, but a private citizen cannot. "Death Note" being a legal execution method doesn't mean that the state can just have you murdered in that manner by a random person. – Nuclear Hoagie Jun 15 '21 at 18:14
  • I always assumed an executioner preformed their duties 'By the power vested in them by the State'. Surely there's some law that indemnifies them from homicide charges? The methods must be authorized by law, and presumably the person carrying out those methods must also be authorized by law. – Mazura Jun 16 '21 at 21:24
  • @NuclearHoagie Wouldn't the state be committing a crime if it executed its own citizens willy nilly outside of the narrow margins it defined for itself by law? – AmiralPatate Jun 17 '21 at 09:29
  • @AmiralPatate The state isn't executing anyone at all, so whether or not that would be a crime has no bearing on the question. Permitting the state to execute someone by firing squad, for example, doesn't mean that it's permissible for the state to parade the prisoner around in front of a crowd with the express goal that someone else will shoot him. – Nuclear Hoagie Jun 17 '21 at 15:38
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Would this be legal for L to use prisoners to prove his theories about Kira?

No (unless the prison gave informed consent to this risk, perhaps in exchange for some favor for his family).

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).

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.

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.

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.

The story is set in Japan, but would this be illegal in the U.S.A.?

Essentially the same analysis applies, although the exact legal authorities cited in support of this conclusion would be different.

ohwilleke
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    I feel like this should be higher. Criminals are routinely asked to inform on other criminals, which is a dangerous action. I believe criminals are occasionally used in sting operations, which is very dangerous. – yesennes Jun 16 '21 at 15:45
  • @ohwilleke how do you know so much, I can’t believe it. – kisspuska Jun 17 '21 at 17:33
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    @kisspuska Lots of reading, comparative law classes in law school, and watching Death Note (of course). – ohwilleke Jun 17 '21 at 19:19
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    @ohwilleke yeah, sounds like it! (Should also probably check out that show, too!) – kisspuska Jun 17 '21 at 20:14
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Well, could a normal person consent to be a decoy?

Put it this way. If they had walked up to any random person on the street and said "You have the right appearance for us to use as a decoy for a famous person. As implied by the word "decoy", there is danger involved".

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.

So the question remaining on the table is whether a death row inmate could consent to this. From the inmate's perspective, I don't know of anything in law that would cause their conviction to strip them of the right to agree to such an arrangement.

And they might find it a great deal more enjoyable as opposed to the usual lethal injection, especially if there are incentives such as clemency if they survive. So the probability of finding an agreeable death row inmate is high.

Could the corrections system let the inmate do that job?

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 uses the opportunity to escape: tearing through the countryside on a crime spree.

Harper - Reinstate Monica
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    You don't think that a person in the custody of the state with the sentence of execution hanging over them might not be in a position where it's impossible, legally, to give informed and willing consent? I'm no lawyer, nor do I have any idea how this might shake out were it to come to some sort of court, but it seems possible that a prisoner has diminished capability of giving consent. – nitsua60 Jun 16 '21 at 23:02
  • @nitsua60 Of course it could easily happen. I just don't think that use-case merits discussion given the ease of obtaining bona fide volunteers with a little incentive. An offer no reasonable person would refuse is not the same as degrading capacity to consent. If a death row inmate did have diminished capability of giving consent, that would raise huge issues about killing them at all! – Harper - Reinstate Monica Jun 16 '21 at 23:38