Terri Schiavo has been ordered by a state judge to be killed by starvation and dehydration. The order implicates her Fifth and Fourteenth Amendment rights not to be deprived of life absent due process of law–the courts that have examined this case do not dispute this indisputable point. I believe it is unquestionably the law of the United States–today, already, without any need to change the law for Terri’s benefit–that due process mandates that no person may be deprived of life by state action unless every factual predicate legally necessary to validate the state action has been proved beyond a reasonable doubt.
The two factual predicates that triggered the state order in this case–that Terri is in a persistent vegetative state (PVS) and that she evinced a desire to die rather than be sustained by food and water if ever she were in a PVS–were not established by proof beyond a reasonable doubt. This cannot be denied. Even the Florida court, which claims (however dubiously) to have made its conclusions using a lesser “clear and convincing evidence” standard, cannot and presumably would not contend that the reasonable doubt standard was used in the state proceedings. Where a taking of life by state action is at issue, the Constitution minimally requires proof beyond a reasonable doubt. Period.
I believe due process probably also requires a jury trial and counsel for Terri at every stage of proceedings aimed at taking her life. But that is beside the point for the moment. The main consideration is that an American is being killed by a court order based on fact-finding so palpably unreliable there cannot even be the pretense that the due-process yardstick our country has long demanded in death cases was used. No one contends the Florida court required proof beyond a reasonable doubt.
Put another way, if PVS were considered a crime Terri had been indicted for, rather than a condition she is afflicted by, the record in this case would have been laughed out of court five minutes after an appellate tribunal started looking at it. Not because the proof was inadequate, although it surely was. Simply because the wrong standard was used. If a Florida court tried to deprive a person of life based on facts establishing capital murder that had been proved only by clear and convincing evidence, the editorial pages would be teeming with condemnation. Both the ACLU and the death-penalty bar would be lined up for miles outside the Supreme Court in anger over a due-process outrage. And they’d be right.
In the United States, we require proof beyond a reasonable doubt on all facts necessary to the judgment before someone is killed by the machinery of the justice system. Nothing less will do.
As Terri Schiavo’s court-ordered killing has proceeded, a spirited debate has arisen between, on the one hand, conservatives outraged by what they (here, I should say “we”) regard as abominable state action, and, on the other, conservatives who, however sympathetic to Terri’s plight, remain understandably suspicious of both federal encroachment on areas traditionally committed to the sovereign authority of the states, and encroachment by any government on areas best left to individual citizens.
“Isn’t what you’re really asking for,” the latter group presses the former, “substantive due process?” In conservative circles, this is akin to saying: “Aren’t you asking that we all be stricken with Bubonic Plague?” Mischievous substantive due process, on this accounting, is one of the principal ways (the murky and thus seemingly boundless “right to privacy” being another) that judges have been able to knead our Constitution over time to fit the pieties of the moment and, more importantly, to transfer decision-making authority from the democratic ballot box to themselves, reducing freedom.
The concern is a legitimate one, but it is inapposite in the circumstances of Terri Schiavo’s case. Those of us who believe government action–whether by U.S. or Florida authorities–must be taken to save Terri’s life should not shrink from the forthright admission that we are asking for her federal due-process rights under the Fifth and Fourteenth Amendments to be given substantive content.
That doesn’t mean it is wrong to do so. And it doesn’t mean the law has to be changed. In truth, we are not asking for the creation of new rights woven out of whole cloth. We are asking very simply for two things: First, that in assessing this situation, people stop elevating form over substance; and second that existing due-process principles–not new ones manufactured for the situation–be applied to a situation that cries out for their application.
As for the first point, though we have pointed out the absurdity that Terri, an innocent woman who does not even stand accused of a crime, is being treated far worse by our law than a hardened criminal would be, we are reminded again and again that Terri’s case is a civil case, not a criminal case. A private action, not a public prosecution. Therefore, so the argument goes, the due-process and other constitutional protections that apply to criminals are not germane to Terri’s situation.
This is the worst kind of “form over substance” claim. A state court has issued an order that has no other purpose and effect than to kill Terri Schiavo. Without that order, she would be living unthreatened and being sustained today. Because of it, she is being detained, those who would help her are being kept at bay by the police, and she is being slowly killed. Functionally, this situation is no different from the entry of a judgment in a capital case ordering an execution.
The Fifth and Fourteenth Amendments do not distinguish between the lives of capital murderers and the lives of other persons. They don’t mention “criminal” and “civil” distinctions. In this context, they command simply that no person shall be deprived of “life…without due process of law.” There is no reason in the text of the Constitution to believe that “due process of law” should have a different meaning depending on whether the life to be taken by state action is that of a convicted criminal or that of some other person.
Complementing that textual consideration are the equities involved. Given the absence of any apparent reason for having one set of due process requirements for murderers and another set for everyone else, if society nevertheless decides to have different requirements, why in the world would we think the murderers should get the better process? Such a notion is ridiculous on its face.
It is also unrealistic. Where the Constitution talks about the taking of life by due process of law, it is obviously talking about criminal defendants. At the time of the founding, in the domestic context, the federal and state governments did not kill Americans other than criminal defendants–killing other citizens is a modern development. The people who raise “substantive due process” as if it were a worthy objection have it backwards. It is not we who seek a dramatic change. It is they who push a radical notion: that even though the constitution describes only one “due process of law” for takings of life, and even though the Supreme Court has imposed minimal standards for that due process on the states for eons, somehow, in the last decade or so, there has supposedly grown up, without our notice, a second, laxer due process to be applied to innocent people who haven’t killed anyone. Nonsense.
It is anything but clear that society has actually made a conscious decision to create two (or more) different varieties of death-related due process–one for criminals and one for everyone else. That we now seem to have two is a historical accident, no doubt owing to the facts (a) that killing non-defendants is so novel the due process implications have not been thought through, and (b) while capital punishment for criminal defendants is firmly rooted, our society shies from honestly acknowledging that its governments are actually taking the lives (as opposed to euphemistically removing the feeding tubes) of non-criminals.
Having refused even to confront honestly that our state governments are now in the business of killing the innocent, we have not yet gotten around to considering that there are no constitutional shortcuts. The due process involved in such takings of life must be measure up to the due process provided for other state takings of life.
Why would it be important to perform such a measurement? Because there is a mature body of capital-punishment law, which grows ever more restrictive and weighs ever more presumptively against execution. (For what little it may be worth, I am reluctantly in favor of the death penalty–I am not seeking here to advance an anti-capital agenda.) Significantly, moreover, this jurisprudence proceeds from one unmistakeable premise: that death is different. Because human beings are prone to error in decision-making, and because death is incorrigible, state takings of life are sui generis.
Death may not, even in a worthy case, be imposed absent extraordinary protections. The “qualitative difference between death and other penalties,” as the Supreme Court put it in Lowenfeld v. Phelps (1988), “calls for a greater degree of reliability when the death sentence is imposed.” Because the taking of life stands on a different plain as the most serious, irrevocable action that government can take, the safeguards that have been imposed by the Supreme Court stand as the minimum threshold requirements that government must satisfy before it may order death consistent with the due process requirements of the Constitution.
This state of affairs, it must be noted, exists in addition to an indisputable fact my states’-rights friends strain to avoid here: There is absolutely nothing new about this federal intrusion. The states and their courts are already compelled by the incorporation doctrine (the Supreme Court’s application to the states of some, but not all, of the Bill of Rights protections that the federal government must honor) to meet many, many minimum federal standards when it comes to the due process in the context of deprivations involving the three fundamental interests explicitly identified in the Fifth and Fourteenth Amendments: life, liberty, and property.
Understandably, states’-rights advocates despise the incorporation doctrine. But resenting it does not make it go away. Nor does it justify unprincipled distinctions–such as the stubborn insistence that an order which has exactly the same effect on exactly the same fundamental interest should be treated differently for due-process purposes based on whether it arises out of a civil as opposed to a criminal case. Again, the Fifth and Fourteenth Amendments do not talk about civil and criminal cases; they talk about government-sanctioned actions that deprive a person of life.
Is this substantive due process? Of course it is. But it already exists, it is irreversible, and it is so much a part of our legal tradition now that we don’t even think about it any longer.
It is also vital to any consideration of the constitutionality of Terri’s court-ordered death. In capital cases, as in all criminal cases, the government is required to prove all the essential facts that predicate a death sentence beyond a reasonable doubt. But because of the aforementioned special imperative of reliability in capital cases, the Supreme Court has emphasized the need for searching review on a comprehensive record whenever death is ordered.
Terri’s case is analogous to a criminal death-penalty case in that there are crucial factual predicates–which would be called “essential elements” in the criminal context–that must be established before an order triggering death by depriving sustenance may properly issue. She must be shown to be in a persistent vegetative state and to have convincingly evinced–while she had the capacity to do so–a desire not to receive sustaining food and water if she were ever in this most dire of conditions. Yet, as noted above, even though this is a death case, the fact-finding here has not proceeded on a reasonable doubt standard. It has proceeded on the lesser evidentiary standard of clear and convincing evidence.
As a matter of constitutional due process, this is unacceptable. Indeed, we should be frightened by it, because if here, in a matter literally of life and death, we are losing reasonable doubt–a core protection for Americans against excessive state action–we are sure to lose it in other areas as well.
As the Supreme Court has only recently underscored (in Booker and Fanfan, the cases that held the federal sentencing guidelines unconstitutional), nothing less than reasonable doubt is acceptable for facts that trigger increases in a sentence–even if the fact would increase the sentence by a day, much less result in the defendant’s death. If the most heinous terrorist had been sentenced to die, and it was later shown on appeal that the court had mistakenly instructed the jury that government was permitted to prove some essential fact merely by clear and convincing evidence, the death sentence (and perhaps the conviction itself) would be reversed. Instantly. Even if the evidence had been overwhelming. Reasonable doubt is that basic in our tradition.
I respectfully believe the attorneys for Terri’s parents should go back to the federal district court and seek the reinsertion of her feeding tube–whether by a temporary restraining order (TRO) or the court’s power under the All Writs Act–on the narrow but epically important ground that due process in the United States requires proof beyond a reasonable doubt before a court may issue an order that results in the taking of life, a right that Terri has been denied.
The law passed by Congress Sunday night clearly permits them to do this. It says in any suit brought by Terri’s parents:
…the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act [i.e., claims under “under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life”] notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings….
Terri’s parents did not raise the specific due-process claim described here in federal court (nor do I believe they ever did so in the state courts). But if the federal legislation means anything, it means they have not waived any claims–especially one so fundamental–and they are entitled to de novo review on any claims raised.
If, as has already occurred once, the federal district court declines to use its abundant authority under the All Writs Act to stop the clock, it would proceed to assess the claim under ordinary TRO standards–which call for evaluating the likelihood of success. In this case, here’s what that would mean: To deny a TRO, a federal district court would have to inform us all that it is now permissible under the due process standards of the United States for a state to order the taking of life on fact-finding based on something flimsier than proof beyond a reasonable doubt.
That seems highly unlikely. Indeed, it seems ridiculous. The court will find abundant, long-established, black-letter law that reasonable-doubt reliability is a sine qua non when the stakes are life and death. I doubt the judge will find much, if any, support–in a contested case where the question was specifically raised and actual considered by a court–standing for what would be the revolutionary proposition that the state may order death on the insufficient evidentiary standard used here. If there is such authority, it would be good for the American people to know about it.
If I am right, if reasonable doubt is the minimum constitutional requirement, then the court should proceed to a full-blown hearing at which the evidence of Terri’s supposed PVS and desire to die are weighed anew–de novo–on the more demanding evidentiary standard. Perhaps then we would learn why basic, easy-to-do scientific tests to measure brain damage were not done in Terri’s case; whether the clinical observation on which the Florida court relied (essentially, a 45-minute examination by a neurologist who is a right-to-die zealot) was adequate for a death case; and whether Michael Schiavo was credible when he suddenly remembered, seven years after the fact, that Terri happened to mention that she wanted to die if she were ever in a PVS.
Maybe it will turn out that the evidence is sufficient, and that the appropriate thing to do is remove the tube and end Terri’s life. But at least then we would know, as a society, that Terri was actually given what the constitution commands: due process of law.
She has not gotten it to date. Not by a long shot.
–Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.