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Thursday, March 31, 2005

Schiavo's due-process interests mirror "actual innocence"

Terri Schivo's due-process interests are virtually identical to the "actual innocence" due-process claims that The Innocence Project has been pushing for the last decade. As DNA evidence started proving convicts innocent, there was no provision in the law for reviewing cases on grounds of actual innocence. Restrictive habeas corpus rules meant that only procedural flaws could prompt reconsideration. Surely the failure to take clear proof of actual innocence into account in the appeals process must fail to satisfy minimum necessary due process standards. This is a federal issue because, under the Fourteenth Amendment, the federal government is charged to insure that the states uphold at least a minimum standard of due process before depriving life, liberty or property. This argument has been effective in attacking the death penalty in many states, and it led to the passage of the federal Justice For All Act of 2004, making sure that convicts and defendants are able to get the DNA tests that might clear them of guilt.

Try to find a difference between these "actual innocence" claims and the Schiavo case. The Florida courts ruled that Schiavo is a vegetable. This has not been subject to review, in spite of substantial evidence that she is NOT a vegetable, and in spite of her husband’s refusal to allow anyone to test whether she is really a vegetable. Shouldn’t "actual consciousness" trump a flawed judicial finding of no consciousness the same way that proof of "actual innocence" is now taken to trump a flawed judicial finding of guilt? Both fall under the exact same Fourteenth Amendment requirement that the states comply with necessary minimum standards of due process before depriving life or liberty.

This is a serious due-process issue. Reviewing it is a fulfillment, not a violation, of federal constitutional obligations. Neither does review in any way constitute government interference with individual choice. On the contrary, it protects individual life and liberty from a deficient legal process.

Other due process concerns also arise. How in the world can a man who fought with his wife the night she suffered unexplained brain damage be allowed, in the absence of any criminal investigation into her injuries, to speak for whether she would want to live? That is insane, especially in the face of contrary evidence about what she would have wanted. In the absence of a "living will," why is what the competent Terri would want the only thing that matters, when the damaged Terri seems to want to live? In the absence of a "living will," why doesn't it matter that her parents want to care for her?

All of these are valid issues, and would certainly be legitimate subjects for federal legislation under section 5 of the Fourteenth Amendment (empowering Congress to legislate due process and other Fourteenth Amendment requirements). Whether they MUST be addressed to satisfy due process requirements is much less obvious. Novel claims of due process rights generally don't fare too well in the courts. This is what makes the "actual innocence" parallel particularly interesting both legally and politically. "Actual innocence" is not a novel due process claim anymore. It is the outstanding recent innovation in due process litigation and has the standing to be taken seriously. On the political side, liberal civil rights lawyers have embraced the "actual innocence" cause. How then can they be indifferent to evidence of "actual consciousness"?

Imagine if Congress passed a special law asking for due-process review in the case of a rape/murder convict who had never been DNA tested for innocence and instead of complying the courts said that there is nothing further to review. Imagine if Congress subpoenaed the convict before he was put to death so it could apply its own test of actual innocence (consciousness) and the courts insisted that the convict be killed before Congress could administer any tests. That would be an exact analogy to what has happened in the Schiavo case.

UPDATE: Rest in peace, live in memory.

UPDATE: Ann Althouse suggests by email that the difference between criminal and civil law changes everything:
In criminal cases the state is required by the Constitution to prove guilt. In the case of a private person receiving medical treatment, that person has a right to REFUSE treatment, so I don't think your argument is going to work.
This critique seems to suggest that, where attention to actual innocence works in favor of a defendant's rights, attention to the truth of a patient's condition will tend to cut against the patient's rights. In general, this cannot be correct. Recognizing the consciousness of a conscious person keeps her life from being ended on false premises. If she wants to refuse treatment, she can still refuse treatment, and if she cannot speak for herself, the court can try to determine, from a living-will or from statements she made when she was competent, whether she would want to live in the condition she is in. Representing her condition accurately should only improve the accuracy of this process. Thus in general I think Althouse is wrong. Attention to actual consciousness cuts in favor of a patient's rights, just as attention to proof of actual innocence cuts in favor of a defendant's rights.

It is possible, however, that the Schiavo case presented a particular combination of circumstances where Althouse's analysis is correct. Suppose Terri Schiavo was conscious, but did want to die, as her husband testified she would have wanted. Right Wing News claims that in Florida, nutrition cannot be legally withheld unless the patient is in a Persistent Vegetative State (see RWN's last FAQ). Under these circumstances, Terri's wishes could only be fulfilled by having the courts ignore the truth about her condition. But this wouldn't be the normal circumstance. The normal expectation must be that accurate information serves the patient's interests, in which case the analogy between actual consciousness and actual innocence holds.

You say,"Under these circumstances [Terri Schindler Schiavo's not being in a PVS and wanting to die], Terri's wishes could only be fulfilled by having the courts ignore the truth about her condition." And you point out that this would not be the usual case.

Now, I'm not sure about its not being the usual case, especially after my physical last week in which my doc, referring to the Schiavo travesty, commented, "I just don't see why anyone would want to live that way," almost prompting me to leap from the table and start throwing my clothes back on - my DOCTOR implying that how SHE felt about being in a certain physical/consciousness state should be taken as a given! But - I completely agree with your "actuality" argument. There is always someone whose interests will not be fully served by even the best law, at least in his/her own opinion. Passing law to allow competent people to enlist the aid, in their own suicides, of medical professionals who have supposedly taken an oath to "do no harm" seems terribly dangerous to me. A slippery-slope argument is fallacious not because the bottom of the slope is impossible or even unlikely but because it claims a particular result is inevitable. Even if right-to-die laws don't lead, ultimately, to duty-to-die practices or imposed euthanasia based on functionalist arguments, those outcomes are not just possible but happening in the Netherlands... Do we want to start down the slope with only faith that we won't end up where we don't want to?
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