CW’s The Flash & Due Process: Do Supervillains Have The Right To An Attorney?

CW’s The Flash is one of the most popular debuts of the 2014-2015 television season, which owes a lot to the fact that it’s a DC superhero property that’s unabashedly fun and self-aware. Of course, it would be. You have villains like Captain Cold, Rainbow Raider, and Pied Piper up against a superhero dressed in head-to-toe leather who runs really fast. When it comes down to it, superheroes in general are inherently ridiculous. They were never supposed to be “realistic,” but fantastical, ridiculous, and something to aspire to in terms of “doing the right thing.” This is in the show’s DNA, but it’s also woven in with the inevitable darker moments that come from a creative team who are writing complex and flawed individuals. Aside from that, what I find interesting about this first season is the question of due process and the supervillain.

Spoilers Ahead for The Flash and Arrow

S.T.A.R. Labs Particle Accelerator. The Flash. 2014. The CW. Barry Allen. Dr. Harrison Wells. Grant Gustin. Tom Cavanagh. DC Comics.
The Particle Accelerator created by S.T.A.R. Labs

Barry Allen and the other super powered characters have all gotten their abilities from the particle accelerator created by S.T.A.R. Labs. In the pilot, the particle accelerator explodes due to a rupture of the “dimensional barrier,” which, as explained by Dr. Harrison Wells, has released unknown energies such as antimatter, dark matter, x elements, etc. This event allows for people with superpowers, or meta-humans, to co-exist in the same universe as the very grounded Starling City where the emerald archer, the Arrow, resides. In the pilot and episode two, we see the first two supervillains (Weather Wizard and Multiplex) killed by getting shot by Detective Joe West (Weather Wizard) or accidentally falling out of a window (Multiplex), but it isn’t until episode three that we deal with containing a supervillain once the Flash has defeated him or her.

In the third episode, the Flash defeats Kyle Nimbus (a.k.a. The Mist) who is then locked up in a containment pod located in the offline particle accelerator. Don’t underestimate the showrunners’ choice of using this particular character as the first supervillain to a) live and b) get imprisoned. The Mist’s ability to change from a solid flesh and blood human being into a poisonous gas sets him up to be a threat that’s too dangerous for traditional prisons. When Dr. Caitlin Snow asks Francisco “Cisco” Ramon if the pod would be able to hold him, he replies by stating that its barrier is a hundred times the strength of the earth’s magnetic field; thus, it’s the only thing at the moment that can hold a supervillain like The Mist. This creates the basis for the rationalization that both the audience and Team Flash (The Flash, Dr. Wells, Dr. Snow, and Cisco) participate in for why these individuals are being housed in a makeshift prison without due process.

The Mist. Anthony Carrigan. The Flash. The CW. 2014. S.T.A.R. Labs. Particle Accelerator. DC Comics.
An imprisoned Kyle Nimbus (a.k.a. The Mist)

What do I mean when I say “due process?” As defined on, due process is “the regular administration of the law, according to which no citizen may be denied his or her legal rights and all laws must conform to fundamental, accepted legal principles, as the right of the accused to confront his or her accusers.” Basically, the law requires that an individual must have all their legal rights respected by the state. 

The Mist, Girder (deceased), Rainbow Raider, Pied Piper, and Peekaboo have all been locked up under a private scientific facility without being formally charged, given their right to an attorney, given a fair trial in front of a judge and a jury of their peers, or handed a punishment fit for their crimes as formally written down in a criminal code (federal like in Canada or state based like in the United States). This is a problem! Yes, they are villains who’ve committed crimes ranging from theft to homicide. But getting powers doesn’t suddenly remove your rights as a citizen. When you remove due process, you not only remove someone’s rights, but you also remove the much needed oversight to ensure that those in power don’t abuse those rights.

Of course, I’m well aware of the potential drawbacks of processing these dangerous individuals through traditional channels. As we saw in Arrow’s second season, episode sixteen was the debut of Amanda Waller’s “Suicide Squad.” The Suicide Squad is a team of supervillains who are sent on missions categorized as suicidal in exchange for lessened prison sentences. Two of the members of this team are the Bronze Tiger (put away by the Arrow himself) and Deadshot. During that episode, we find out that Waller has embedded a GPS and explosive device inside their heads to keep track of where they are and as insurance that they won’t use this deal as a way to escape. All of this is done through a shadowy government-sanctioned group called A.R.G.U.S.

There are three things to note here. The first is that the Arrow did put the Bronze Tiger through the criminal justice system only to have him scooped up by A.R.G.U.S. for this team. The second thing to notice is that the group that scooped him up are 1) a branch of a democratically elected government, but 2) are a part of the government that’s hidden from the public and is given little to no oversight from the top government officials they report to. The final observation is that these supervillains still have their rights infringed upon by the very fact that objects have been embedded into their bodies without their knowledge or consent and it can kill them with a click of a button; however, this isn’t the first time legitimate agencies are depicted as being a terrible alternative to due process.

Plastique. Bette Sans Souci. The Flash. The CW. 2014. DC Comics.
Bette Sans Souci (a.k.a. Plastique)

In episode five, we’re introduced to Bette Sans Souci (a.k.a. Plastique) who was a soldier in Afghanistan. Her job was to defuse roadside bombs when one of them exploded causing shrapnel to “rip through” her and nearly killed her. She was on U.S. soil recovering at the time of the particle accelerator explosion, and, according to Dr. Snow, the dark matter that was released must have interacted with the shrapnel still in her body. This gave her the ability to turn objects that had contact with her skin into bombs. Throughout the episode, we watch General Eiling hunt her down after she escaped the same military base where her life was saved and then later turned into a lab rat once her ability was discovered.

Although Plastique is a supervillain in most of her comics iterations, she’s not depicted as a villain in the television show. She’s a soldier who almost lost her life for her country and, the moment she was able to weaponize objects with just a touch, she became a tool for the military and no longer a human being with rights and whims of her own.

“Next thing I know, I became the thing that almost killed me.”

This is what Plastique tells Team Flash when explaining her situation and it feeds into a bigger theme The Flash seems to be dabbling with this first season. The supervillains are imprisoned in the same particle accelerator that gave them their abilities, abilities that led them to their current cells. In the same way that The Mist served as a rationale for why the actions of Team Flash were “right,” Plastique’s situation serves to reinforce it by stating that Team Flash, by comparison to Eiling, are the good guys and therefore can only be trusted with these meta-humans. Trusted to protect us from them and protect them from the law or those who represent it.

What General Eiling and Waller have in common is that they both work in the parts of the government that don’t operate under transparencyas a mandate A.R.G.U.S. or in specific situations the Military. This allows for the extreme situations illustrated above and why many of us aren’t as bothered by the lack of due process on Team Flash’s part. How terrifying would it be if A.R.G.U.S. got a hold of some meta-human supervillains to add to its Suicide Squad? What would have happened if General Eiling caught Plastique? That’s the underlying fear being fueled here, but does that make what Dr. Wells and company do right?

The Flash. Barry Allen. Grant Gustin. Dr. Harrison Wells. Tom Cavanagh. Dr. Caitlin Snow. Danielle Panabaker. Francisco "Cisco" Ramon. Carlos Valdes.  The CW. DC Comics. 2014. S.T.A.R. Labs.
Team Flash from left to right: Francisco “Cisco” Ramon, Barry Allen (a.k.a. The Flash), Dr. Caitlin Snow, and Dr. Harrison Wells at S.T.A.R. Labs

How about we take what they’re doing a step further by looking at two specific supervillains: Tony Woodward (a.k.a. Girder) and Farooq Gibran (a.k.a. Blackout). Girder appeared in episode six and was locked up in the particle accelerator by the end of it. We see him in the next episode when Dr. Wells goes to him with a proposition: kill the meta-human, Blackout, who has gone on a rampage in the lab, and you’ll get your freedom. This sounds a lot like the deal behind Waller’s Suicide Squad, doesn’t it? By the end of the episode, Girder is killed by Blackout and Blackout dies from absorbing too much of the Flash’s speed energy. It’s obvious that Dr. Wells made his deal through sheer desperation since the Flash was without his abilities for most of the episode, but what happens when our heroes get desperate again? The Flash was upset by Wells’ actions, but what happens when he’s put in a position that requires him to make unethical choices? We haven’t even touched on what I find the most disturbing part yet. Despite the fact that Blackout is dead and no longer a threat, Team Flash still locked up his body in the particle accelerator prison. It doesn’t stop there! Dr. Wells goes back to take a sample of his blood, since it contains the Flash’s speed energy inside it, for future use. Both of these supervillains have died, and no one will know about it outside of the five people who do: Detective West, Dr. Wells, the Flash, Dr. Snow, and Cisco. Does he have a family? A job? Friends? Responsibilities?

Regardless of whether you’re a superhero or the government, due process is a form of oversight that protects everyone regardless of whether or not you have powers or are deemed a threat. At the very least, Team Flash can be accused of kidnapping since they’re civilians and not law enforcement. The Flash is technically and legally a vigilante. His job as a superhero is unlawful, which can actually be harmful for when, if ever, these cases are put in front of the courts (this will be explored more in a separate piece on Arrow).

Captain Cold. Leonard Snart. Wentworth Millar. Heatwave. Mick Rory. Dominic Purcell. The Flash. DC Comics. 2014. The CW.
Leonard Snart (a.k.a. Captain Cold) and Mick Rory (a.k.a. Heatwave)

It’s also interesting to note who gets due process and who doesn’t on The Flash. Leonard Snart (a.k.a. Captain Cold) and Mick Rory (a.k.a. Heatwave) aren’t meta-humans, but just supervillains who use stolen high tech guns from S.T.A.R. Labs to commit their crimes. At the end of episode ten, Revenge of the Rogues, both Captain Cold and Heatwave were sent to prison (they later escape) and not to the particle accelerator. Why? It could be one of two things. Before episode ten, most people didn’t know about the Flash; he was officially outed when he went head-to-head against Captain Cold and Heatwave in a publicly orchestrated showdown. It can be argued that because the Flash is now publicly known, it would be difficult to whisk Captain Cold and Heatwave off to the secret prison below the lab, especially after multiple police officers have witnessed the entire ordeal. This is a weak explanation, because within the following episode, Pied Piper is imprisoned by Team Flash despite two very public altercations with the speedster. I think the decision of due process so far has to do with human vs meta-humans.

What I’ve noticed while writing this piece was the language and treatment of those with powers as opposed to those without. First off, those with powers are called meta-humans, which already separates them from human beings who are normal, non-powered individuals. “Meta-human” can be read as being more than human. This could mean superior, or it can be read as a form of othering. Add that they are considered “threats” and you have the rationale for imprisonment without due process, because they’re not really people. The Flash is okay because 1) he’s obviously the good guy, and 2) he’s part of the group doing the imprisoning. Those supervillains are the bad guys, and what’s worse, they’re bad guys with powers beyond our understanding. As I’ve said before, having powers doesn’t mean you no longer have human rights, and the best way to remember this is by looking at superpowers as being part of someone’s identity the same way race, sex, gender, religion, etc. are part of someone’s identity. Should we refuse someone the right to an attorney because they can turn into poison as opposed to poisoning someone with a vial? Why can’t S.T.A.R. Labs offer building prison cells for Central City that can hold these villains as opposed to keeping them in their basement?

The Flash. Barry Allen. Grant Gustin. The CW. DC Comics. 2014.
Barry Allen (a.k.a. The Flash)

So why are we okay with Team Flash’s disregard for their opponents’ legal rights? Is it because the Flash is the superhero and his intentions are good? Yes and no. Superheroes exist not only because they’re fantastical, but also because they embody the qualities we expect in those who uphold the law (police officers, lawyers, judges, etc.). They fill the void where the law is failing to do its job, which is to serve justice. When we’re having a crisis of faith in them, we hold onto those spandex wearing heroes even tighter. What we tend to forget is that superheroes aren’t perfect. They’re people, most importantly they’re characters created by people, and people make bad judgement calls.

Dr. Snow: “So we’re just supposed to get used to working above a makeshift prison housing evil people with superpowers?”
Dr. Wells: “You’d be surprised what you can get used to, Caitlin.”

This exchange was in the third episode where Dr. Wells, Dr. Snow, and Cisco imprison their first meta-human and supervillain, The Mist. We never want to be in the position where we get used to refusing people their rights. So when I propose the need of due process for the supervillain, I do so for their protection and to make sure that the superhero doesn’t go down a very slippery path. They aim to protect us, and it’s only fair that we should return the favor.

Ardo Omer

Ardo Omer

Former WWAC editor. Current curmudgeon and Batman's personal assistant. Icon art by Diana Sim.

3 thoughts on “CW’s The Flash & Due Process: Do Supervillains Have The Right To An Attorney?

  1. We always chuckle about the fact that those cells don’t even contain toilets or beds. There’s a secret prison over on Arrow too. I’ve decided to have the same level of concern over this as I do the fact that our heroes are actually vigilantes. It’s fun times in fiction, but I would be strongly opposed to all of that in the real world.

    I do wonder if the ethics of this will actually be called into question at some point. Barry, Cisco, and Caitlyn tend to follow Dr. Wells’ lead, assuming he’s older and wiser and knows what’s best. And we know some really important details about him (straight-up supervillainy!) that they don’t yet. If this season ends with Wells locked in one of his own cells, I won’t be shocked.

  2. The thing that strikes me about the portrayal of due process (or its lack) is twofold.

    1. The Flash isn’t a police/law/csi show as such; it’s a superhero show. If people wanted to watch police/law/csi shows, there are SO MANY other choices for them to watch, so they don’t have to focus on that. That’s the meta angle. They don’t have bathrooms or food facilities in the cells either, which means the writers more than likely either didn’t think about it and therefore the set designers/dressers didn’t think about it either. Their bad for not expecting the fans/viewers to not think about it.

    2. The in-universe angle is complicated on a couple other levels.
    A. How do we find lawyers who are willing to represent people who could harm/kill not only them, but the entire courtroom, and/or everyone in the courthouse?
    A1: how do we find lawyers who know, because they were there, or because they saw it on TV, that are willing to represent people who are definitely guilty and could still harm/kill all the people mentioned above?
    B. How do we bring to court a person who is that much of a threat to not only due process but the general public, which begs the question of whether it’s more ethical to sidestep process for the sake of the safety of everyone in the city.

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