The Power of Politics In Service of the "Culture of Life"

I was planning on coming home and ripping off a good rant about the weekend's developments in the Schiavo case. But then I found this post over at Crime & Federalism, which pretty much sums up my thoughts on the freak-show Congressional action of yesterday. So, rather than restate what has been said, let me make a couple of points that I haven't heard addressed yet (and pass on some helpful links).

The Florida Courts Did Their Job

The major motivation for Congressional action seems to be disagreement with the outcome of the extensive litigation among Schiavo's husband, parents, and the state of Florida in the state courts. Contrary to Tom "What Ethics Investigation?" DeLay, considerably more than one judge was involved in this case. In fact, no fewer than 19 judges have dealt with the case at some point and all of them came to the same conclusion.

It is, of course, DeLay's (or anyone else's) prerogative to disagree with that conclusion, but that doesn't justify Congressional intervention. Courts are set up to handle just this kind of situation: two private parties who disagree on a factual/legal matter. They present evidence to the court which, by definition, must resolve factual conflicts and reach a legal conclusion. A party that doesn't agree with that conclusion (or, less so, the factual resolution) can seek review from higher courts. Florida has two levels of appellate courts, in addition to the U.S. Supreme Court. So, even in a normal procedural situation, this case would received four levels of review. As it is, due to various factors, it's gotten even more than that.

And the courts all agree that Terry Schiavo would have not wanted to be kept alive using extraordinary means. The fact that her parents may want to cling to hopes of recovery are, quite frankly, irrelevant. She was an adult when afflicted, a married adult, at that. She has the right to refuse medical treatment and her husband, as her legal guardian, can exercise that right. This happens all the time without the accompanying public melodrama. And courts deal with it. Just like they did here.

Federal Criminal Habeas Review Is Irrelevant

One of the talking points from the GOP over the weekend was that the bill passed last night would allow Schiavo to have her day in federal court, just like Scott Peterson eventually will. This analogy is, quite frankly, a load of shit.

For one thing, there is a whopping difference in the states of mind between the two parties. While courts have consistently found that Schiavo would not want to be kept alive as she currently is (thus, wants to die), Peterson (and a vast majority of death row residents) want to live. Therefore, the issue is the exercise of the state's power to execute someone, not whether a terminally ill person's wishes regarding her medical care will be respected.

Second, Schiavo's case will get a much greater hearing in federal court than any state convict does. Back in the Clinton years, Congress passed (and Clinton signed - thanks, Bubba) the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The purpose of the AEDPA was to streamline the federal habeas review of criminal cases and speed up executions (although it applies to all criminal cases). In particular, federal courts under the AEDPA are very restricted as to how they review a case. Issues previously not raised are waived, and those issues resolved by state courts are entitled to great deference. Federal courts can only vacate a death sentence (or overturn a conviction) if a state court's decision on an issue is "clearly contrary" to established Constitutional law. That means that any even vaguely close issue is resolved in favor of the state. By contrast, Schiavo's case will be reviewed do novo, meaning that the federal court is free to disregard all of the findings and holdings of the Florida courts.

And Now Those Links

• An article from Reuters, with experts opining that recovery from Schiavo's condition is "impossible." Particularly relevant is this observation:
  

  'To the families and loved ones, and to inexperienced health care professionals, P[ersistent] V[egetative] S[tate] patients often look fairly 'normal,'' Cranford said in a statement.

  'Their eyes are open and moving about during the periods of wakefulness that alternate with periods of sleep; there may be spontaneous movements of the arms and legs, and at times these patients appear to smile, grimace, laugh, utter guttural sounds, groan and moan, and manifest other facial expressions and sounds that appear to reflect cognitive functions and emotions, especially in the eyes of the family.'

• A New York Times article discussing the machinations of Congress over the weekend.

• A USA Today article discussing reaction to Congress's actions. On a similar ground, an ABC News poll shows overwhelming disgust for Congress's intervention.

• Finally, a Knight-Ridder article examining some of the legal problems the new law might provoke.