Patterico's Pontifications

3/23/2005

I Thought I Asked a Question

Filed under: Schiavo — Patterico @ 5:26 pm



I know for a fact that many people are reading this blog who believe that Congress acted inappropriately in passing the law regarding Terri Schiavo. I posed a question a few posts back, and not a single one of you has even tried to answer it.

Do you think I didn’t notice?

In case you forgot, my question was this: What is the difference between providing federal habeas review for Terri Schiavo, and providing it for someone sentenced to death in state court?

While we’re at it, I have another question for you folks. I’ll address that one in a separate post.

39 Responses to “I Thought I Asked a Question”

  1. Oh oh! Pick me! Pick me!

    I don’t like federal habeas review much either. The AEDPA made me very happy, and this is a step away from that trend.

    The Angry Clam (c96486)

  2. But I bet many of the people who want Terri Schiavo dead want to save convicted killers. And so the question was: what’s the difference?

    Patterico (756436)

  3. “What is the difference between providing federal habeas review for Terri Schiavo, and providing it for someone sentenced to death in state court?”

    Is it the text of the 8th amendment?

    actus (e8ffe9)

  4. I tried to answer your original post, but some time between clicking “Say It!” and whatever happens next, my comment disappeared. It was a moment of brilliance, and if you’d read it, you would have agreed and probably voted Clinton-Clinton ’08, but I guess you’ll never know. I’ll try to summarize:

    US federal Criminal law is essentially constitutional law and, for better or for worse, has been since the 4th, 5th, and 6th Amendments were written. States interpreting their constitutions to provide protections above and beyond those found in the constitution is a relatively recent and incomplete phenomenon. Where states offer less protection, access to federal courts has been the accused’s only avenue to having their constitutional questions adjudicated. It stands to reason that essentially constitutional questions can go to federal courts.

    Unlike criminal law, domestic law (that’s domestic like “family,” not like “beer”) has been the province of the states. This line is, I believe, fuzzier than it used to be, but it isn’t gone. The fundamental dispute in the Schiavo case is between Michael and Terri’s parents. It isn’t silly to say that, since the court has decided who wins, the state is an actor here as it is in criminal cases. That point of view, though, has been soundly and repeatedly rejected by the courts. Any number of constitutional provisions don’t apply, then. For example, the equal protection clause? Doesn’t apply — private citizens can discriminate their heads off and the constitution doesn’t care (although some federal laws might).

    Summing up: when your opponent is one of the United States, and your protections stem from federal law, you get to to appeal to Uncle Sam. When your opponent is another citizen, and the question is one of state policy, Sam stays out of it (or probably ought to). That’s one aspect of Federalism, and I think it’s a good one. If the US Congress can reach out and override state laws because they’re unpopular or lead to results the Congress doesn’t like, then there’s very little point in having 50 state governments at all.

    Ok, so this isn’t my blog, but I hope you won’t mind me asking a question back: what if the issue were something else. Imagine (or maybe you don’t have to) that you are vehemently anti-abortion, and also that there had been no Roe v. Wade (work with me here). The legality of abortion is therefore still up to each of the states. Virginia has banned abortion except under a few specific circumstances. Jane Hypothetical believes that she falls under one of the exceptions and sets up an appointment to have an abortion.

    Jane’s ex-husband, hoping to save the unborn child’s life, file a suit in state court to stop the procedure. There’s battling and emergency appeals, but in the end the state courts decide that Jane is outside the abortion exceptions and issue an injunction preventing her from going ahead. Just then, the US Congress steps in, giving the federal courts special jurisdiction to review the state court decision. Congress’ expressed intention is that the federal courts would allow Jane to have the abortion. Etc.

    That situation isn’t an analog to the Schiavo affair, or even close. I’m just trying to suggest that when federal power overrides state law, the resulting damage to state autonomy can cut any which way.

    Jeez, this is really long. Sorry about that.

    Lance McCord (796dd3)

  5. Federal habeas, as I understand it, and I am not a lawyer, is to assure that a convict’s civil rights are not infringed by the State in putting him/her to death. The State is not putting Terri to death The State is not ordering her death. They have ordered that, in this matter, Terri’s husband is the decision maker. Michael is ordering the death of his ‘wife’.

    Craig R. Harmon (557e82)

  6. The Eighth Amendment does not apply. Cruel and unusual punishment can by definition apply only to punishment and, in my opinion, only to punishment applied by the government (federal, state or local) or the military as an arm of the Government. This cannot, by any stretch of the imagination, apply to Terri Schiavo.

    Craig R. Harmon (557e82)

  7. “Cruel and unusual punishment can by definition apply only to punishment and, in my opinion, only to punishment applied by the government (federal, state or local) or the military as an arm of the Government.”

    Thats what I was getting at.

    actus (e8ffe9)

  8. As an addendum to #6, the removal of food/hydration from a patient is legal practice in 49 out of 50 of our States. The only reason it is not practice in 50 States is because, in Utah, Physicians are permitted to assist in patients’ deaths. Thus, much less prolonged deaths can be avoided. The point here is, aside from not being punishment, what is happening to Terri Schiavo is not unusual. It is, in fact, the usual practice in cases where prolongation of life is deemed not to be the will of the patient.

    Finally, Doctors are able, by the judicious use of sedation, avoid cruelty.

    Craig R. Harmon (557e82)

  9. Okay, I get it, Actus. I misunderstood your point.

    Craig R. Harmon (557e82)

  10. #8 The third sentence should read: “Thus, prolonged deaths can be avoided.”

    Craig R. Harmon (557e82)

  11. Is it the text of the 8th amendment?

    Nope.

    Patterico (756436)

  12. The difference is that the criminal has representation and Terri Schiavo does not.

    Monica-Philadelphia (bfa3a3)

  13. Noted Tom Delay sock puppet Tom Harkin may propose legislation to address this very point:

    Sen. Tom Harkin of Iowa, is considering introducing legislation that would allow a federal judge to review cases in which people had written no living will or left other instructions specifying their medical wishes if they became incapacitated and in which there is a dispute about the patient’s wishes.

    “The more I looked at the Schiavo case, the more I thought, Wait a minute. There are a lot of people in similar situations — maybe not in her specific situation — but because of a disability cannot express themselves or cannot in any way make their desires known,” Harkin said last weekend.

    More on the disabled and the Schiavo case at my humble blog.

    Tom Maguire (1d5378)

  14. Unlike criminal law, domestic law (that’s domestic like “family,” not like “beer”) has been the province of the states.

    Huh? Criminal law has not been historically the province of the states??

    It isn’t silly to say that, since the court has decided who wins, the state is an actor here as it is in criminal cases. That point of view, though, has been soundly and repeatedly rejected by the courts.

    Do you have authority for that?

    For example, the equal protection clause? Doesn’t apply – private citizens can discriminate their heads off and the constitution doesn’t care (although some federal laws might).

    I don’t claim to be a Con Law expert. But I seem to recall that
    Shelley v. Kraemer
    found state action in the use of the courts, when the courts enforced racially restrictive covenants.

    My understanding of the principle involved is that the private parties could not have accomplished the discrimination without the involvement of the courts.

    Here, Michael Schiavo was required to petition the Florida courts for authority to end Terri Schiavo’s life. He is ending her life — the right to which is protected by the federal Constitutition — only by involving the courts. It seems to me that there is a good argument that state action is involved, just as in a capital murder case.

    I find it hard to follow the argument that the state is not ordering her death. The judge’s order — you know, the one where he screwed up the credibility analysis — says that it is “ordered and adjudged” that Michael Schiavo’s dishonestly nmaed “Petition for Authorization to Discontinue Artificial Life Support” is granted, and Schiavo is authorized to proceed with the “discontinuance of said artificial life support” (plain English: the yanking of her feeding tube). Again, Schiavo would not be allowed to do this if the court hadn’t granted his petition.

    It seems to me that your entire premise is that no state action is involved. Again, I am not a Con Law expert, and I know that some people reading this blog know a lot more about that area of the law than I do. I am open to correction on this, but my cursory analysis is that there is a decent “state action” argument — at least for the loose purposes of making my analogy.

    Patterico (756436)

  15. The difference is that the criminal has representation and Terri Schiavo does not.

    Yes — there is that. And there are plenty of other distictions that favor Congress’s action. Such as: nobody has convicted Terri Schiavo of cold-blooded murder. Etc.

    Anyone???

    But I am hearing no distinctions that show why Congress should not have acted.

    Patterico (756436)

  16. Terri Schiavo Links
    Michael Schiavo’s medical witness, Dr. Michael Cranford, advocated starvation of Alzheimer’s patients in a 1997 editorial. Via The Corner. Patterico rebuts the LA Times depiction of death by starvation as being “euphoric.” The NY Times described de…

    Les Jones (794c81)

  17. Nobody has convicted Terri Schiavo of cold-blooded murder because, of course, this was not a criminal matter. What is happening here is not the meeting out of punishment. It is the carrying out of what the court has determined was Terri’s wishes through the person whom the court has determined as a matter of law is the decision-maker in cases of severe disability: the spouse, in this case Michael Schiavo. As I said previously, this is not a case of a court ordering a punishment of death. It is the case of the court determined decision-maker carrying out what he believes to be Terri’s own wishes.

    Craig R. Harmon (557e82)

  18. As I said previously, this is not a case of a court ordering a punishment of death.

    It is a court-authorized killing.

    It is not “punishment” because Terri Schiavo did nothing wrong. Apparently, because she did nothing wrong, her habeas petition can be cavalierly dismissed within 24 hours by a district judge who wouldn’t dare do that to a habeas petition in a capital case.

    Patterico (756436)

  19. Ok, so this isn’t my blog, but I hope you won’t mind me asking a question back: what if the issue were something else. Imagine (or maybe you don’t have to) that you are vehemently anti-abortion, and also that there had been no Roe v. Wade (work with me here). The legality of abortion is therefore still up to each of the states. Virginia has banned abortion except under a few specific circumstances. Jane Hypothetical believes that she falls under one of the exceptions and sets up an appointment to have an abortion.

    Jane’s ex-husband, hoping to save the unborn child’s life, file a suit in state court to stop the procedure. There’s battling and emergency appeals, but in the end the state courts decide that Jane is outside the abortion exceptions and issue an injunction preventing her from going ahead. Just then, the US Congress steps in, giving the federal courts special jurisdiction to review the state court decision. Congress’ expressed intention is that the federal courts would allow Jane to have the abortion. Etc.

    Well, you say this isn’t even close to an analog to the Schiavo affair, so I am confused as to whether I need point our the differences. Congress did not express an intent as to how the courts should rule in this case. And in this case, there is a constitutional right at stake: the right to life. I do not agree that there is a constitutional right to an abortion.

    By the way, what is the difference between your hypothetical scenario, and one in which a woman cannot get an abortion under state law, so she goes to the federal courts to enforce that “right”? You know — like the plaintiff in Roe v. Wade?

    My point is that you appear to be trying to make your scenario seem far-fetched, when substantially the same thing has already happened — just without Congress’s involvement.

    Patterico (756436)

  20. It is a court-authorized killing.

    It is a court allowing a patient to die according to what the court believes to be the patient’s own wishes.

    Craig R. Harmon (557e82)

  21. Schiavo Links
    I have not posted much about the Schiavo case. There are other blogs out there doing so. Below are some links. FindLaw has posted all of the opinions filed in the case here Outside the Beltway has consistently good posts…

    The Southern California Law Blog (f2a7ef)

  22. In other words, it’s a court-authorized killing.

    Xrlq (c51d0d)

  23. I’m not a Con Law expert either, so I’ll see what I can find out about the Kraemer case. I understand the rule you’re describing, though, to mean that there’s state action whenever something happens that couldn’t have happened without the courts. If I’ve got you right there, what would not be state action?

    Also, as to comment 19, I wasn’t trying to make my hypo seem far-fetched. I meant it as an example of how federalism protects left and right alike.

    Also, as to the government expressing an opinion, it seems they did.

    Lance McCord (796dd3)

  24. I said:

    Congress did not express an intent as to how the courts should rule in this case.

    Did your link somehow refute that? It looked like a legal document signed by 5 congressmen — not by “Congress.”

    If the law itself expressed an opinion as to how the court should rule, I missed that.

    Patterico (756436)

  25. If I’ve got you right there, what would not be state action?

    Plenty. If the Boy Scouts want to exclude gay Scoutmasters, they don’t need to go to court to do that. They just do it. And that’s private activity.

    In Shelley, the plaintiffs wanted to kick black people out of their homes, with the court’s help. In the Schiavo case, Michael Schiavo wants to starve his wife to death, with the court’s help.

    Patterico (756436)

  26. “In the Schiavo case, Michael Schiavo wants to starve his wife to death, with the court’s help.”

    If this is the way you’re truly beginning to see this case I think with all due respect you’re getting fatigued and need to get away from it for a while so you can refocus. That’s not even an analytical statement. Nothing a bit of rest can’t cure.

    Richard Ames (adfcb0)

  27. I am indeed off to bed. Perhaps in the meantime you can tell me what part of my statement was inaccurate. It seemed like a perfectly straightforward factual statement, albeit perhaps lacking in the nuances you might like to see.

    For example, in a capital murder case, opponents of the death penalty might well say that the state wants to kill the defendant, with the court’s help. While an emotionally loaded way of putting it, such a statement would be absolutely true.

    There are allegedly reasons for the killing in both cases. But it’s killing in both cases. By putting it the way I did, I am saying: don’t kid yourself.

    Patterico (756436)

  28. I didn’t answer because I figgered it was so self-fckin’-evident. Terri has been deprived of due-process, in clear violation of the 14th amendment.

    She is being not just “allowed to die” but “caused to die” by the criminal negligence of both InJustice Greer and the state of Florida.

    Impeach the miserable bastard.

    Partisan Pundit (155e23)

  29. But you’re the one who’s kidding yourself, Patterico. This is a case about medical care, not about crime and punishment.

    Are you really an attorney?

    Richard Bennett (c5751d)

  30. Questions
    Patterico keeps ’em comin’: What is the difference between providing federal habeas review for Terri Schiavo, and providing it for someone sentenced to death in state court? A question interesting to those interested in the law — the comments sect…

    Sierra Faith (51b069)

  31. Questions
    Patterico keeps ’em comin’: What is the difference between providing federal habeas review for Terri Schiavo, and providing it for someone sentenced to death in state court? A question interesting to those interested in the law — the comments sect…

    Sierra Faith (51b069)

  32. “But I seem to recall that
    Shelley v. Kraemer found state action in the use of the courts, when the courts enforced racially restrictive covenants.”

    My realist take on shelley is the broad state action existed because what people were trying to use the courts to enforce was so repugnant that we did not want to allow private parties to make these contracts, or to even be able to enforce them.

    Here you may disagree with what is going on, but the moral issues of guardianship and vegetative care and the withdrawl of sustenance have been pretty well worked out.

    “Plenty. If the Boy Scouts want to exclude gay Scoutmasters, they don’t need to go to court to do that.”

    I think the guy could get himself into court, or sued, somehow.

    actus (e8ffe9)

  33. Actus:

    I think the guy could get himself into court, or sued, somehow.

    So what? The question is whether he *needs* the courts to accomplish the discrimination. Answer: no. By contrast, Schiavo can’t legally starve his wife without the court’s say-so.

    Richard Bennett:

    But you’re the one who’s kidding yourself, Patterico. This is a case about medical care, not about crime and punishment.

    Are you really an attorney?

    You found me out, Richard Bennett. I am not really an attorney. I simply play one on TV. And the internet.

    In context, I thought it was clear that I wasn’t asking for people to simply list any differences they could think of between this case and a capital murder case. I was asking for *relevant* distinctions, accompanied by logical arguments (rather than snide insults like your questioning whether I am a lawyer), that rendered Congress’s action outrageous.

    This is a case about life or death. Whether life or death is appropriate depends upon factual findings made by a state court. Congress provided for review of those findings in federal court, because of constitutional issues involved. In every respect, it strikes me as just like a death penalty case.

    The fact that this is about “medical care” instead of “crime and punishment” is relevant to my argument — how?

    Logical argument rather than insults, please.

    Patterico (756436)

  34. Sigh. Another of my comments got eaten. (How does Word Press know I’m a liberal?) Short take:

    Good call on Shelley, Patterico — my understanding of the state action doctrine was simplistic. I think that Shelley, though, doesn’t do all that you’d like it to. It’s application is spotty (see the dueling dissents of Justices Douglas and Black in Bell v. Maryland) and the branch of the “entanglement doctrine” Shelley represents has mainly been limited to racial civil rights cases, prejudgment attachment proceedings (Lugar v. Edmonson Oil Co.), and peremptory challenge litigation (Georgia v. McCollum).

    Closer the the point at hand, the state action doctrine was relied on by Judge Whittemore in the First Amendment portion of his denial of an injunction. The 11th Circuit had two chances to correct him, and didn’t.

    Lance McCord (ed5341)

  35. Sorry for the double post, but I just ran across this:

    Justice Scalia’s majority opinion in Bray v. Alexandria Women’s Health Clinic withers Souter’s dissenting citation of Shelley v. Kraemer by saying, “Any argument driven to reliance upon an extension of that volatile case is obviously in serious trouble.”

    Lance McCord (ed5341)

  36. I am not making a strictly legal argument anyway — just an analogy.

    Patterico (756436)

  37. Dang, heated discussion. It’s hard to find a distinction, other than history, for saying Congress cannot allow relitigation of federal issues in a federal court, whether or not they are addressed first in a state court. As a prudential matter, the federal government may have more of a need to intervene in criminal matters (or any kind of detention by the state) because it would have to reign in the 50 smaller governments under it. It is a legal means for releasing federal officers illegally held by states, or other stuff that impedes the operation of the federal government. The constitutionalization of criminal law in the 20th century also seems to give the writ of habeas corpus a special place in our culture, which cannot be said for all collateral review.

    One difference, take it or leave it, is that if Congress had authorized collateral review (or even relitigation) generally of federal issues in a district court, ignoring normal res judicata issues, that would be one thing. But I think it would be unusual even in the habeas context for, when no prior law exists, for Congress to decree review of a specific prisoner’s case. In other words, there is an expectation of habeas review in criminal cases; there was no expectation of federal review for Schiavo. Changing the rules in the middle of the game seems a little off putting.

    As for state action, I think the real issue is that keeping the tube in is state action, not removing it. The issue is that the court determined Terry’s wishes were to not recieve nourishment this way, not that Michael had the power to remove it, or that the state had the power to remove it. Receiving care without consent is a battery, and the state has the duty to refrain from care when the patient invokes her right. Whether we believe the evidence (and some does seem dubious) or believe Michael is actually invoking Terry’s intentions (also doubtful) are different issues.

    Matto Ichiban (c076da)

  38. OK, if you want analogies it is KINDA like a death penalty case insofar as it involves people, courts, judges, laws, TV, and life.

    And it is kinda unlike a death penalty case as it involves a person in a persistent vegetative state (or something very near to one) who expressed the desire to several friends and family not to be in such a state.

    It is also unlike a death penalty case as it has involved dozens of judges, dozens of trials, multiple acts of pandering, midnight acts of Congress, and the unrestrained demonization of the victim’s family.

    So like most analogies this one only goes so far.

    The fundamental issue in this case is a finding made by the trier of fact with which you don’t agree. In our system of law, a finding doesn’t have to be agreeable to all critics in order to be proper, and since no court has found abuse of discretion on Judge Greer’s part, and no court has found gross errors of fact on his part, and no court has found any likelihood that a de novo review would produce a different result, we are where we are fifteen years after Terri Schiavo’s heart stopped.

    Richard Bennett (57f7ac)

  39. More Schiavo Push-Polling
    More push-polling. This is from Democratic pollster Pat Caddell. Via Junkyard Blog. But even more importantly, the question that has been drawing the most attention is the argument that 82% of the people said they didn’t want the President or Congress…

    Les Jones (794c81)


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