The Misperception of Schiavo's "Due Process"

I’ve just finished listening to another commentator talk about the number of hearings that have taken place over Terri Schiavo as an example of how she has received “due process.”

This is one of the biggest misperceptions out there and one that is giving false moral comfort to proponents of putting Terri Schiavo to death. There are two basic legal systems in place in North America. The civil legal system deals primarily with economic rights. Breaches of contracts, torts, personal injury suits and family law matters are all governed by civil standards. Then there is the criminal legal system which has its own set of procedural safeguards that are much more stringent than the civil standards. The reason is simple. Criminal courts deal with basic rights to life and liberty and the ability of the state to deprive individuals of those rights. As such, the entire system is designed to overwhelmingly err on the side of life and liberty.

Terri Schiavo’s case has proceeded, and continues to proceed, under the civil legal system. When you hear opponents of Terri’s death cry out that criminals and terrorists are afforded more rights than Terri Schiavo, this isn’t just emotional rhetoric. This is absolutely correct. This is an emerging area of the law, and the facts of the Schiavo case are quickly revealing that the civil system should best be left for the determination of property rights, not life and death decisions. To put this in context, the procedural due process that Terri’s received is about the same or perhaps slightly higher than what you’d find in a hotly contested patent infringment case, but nowhere near what someone charged with something as minor as petty theft would receive, let alone a prisoner on death row. Below I posted a concrete example of the absurdity that results: the Federal Court relying on a case dealing with the sale of discount gasoline in determining whether to grant a stay to save Terri Schiavo’s life. Exemplifying my point, the discount gasoline case falls under the heading “Applicable Standards.” But I point to another passage of the court dealing with the issue of “cruel and unusual punishment” that gets to the heart of the issue:

The Eighth Amendment’s prohibition against cruel and unusual punishment only applies “subsequent to and as a consequence of a person’s lawful conviction of a crime.”

There it is in clear print for all the world to see. If Terri were convicted of some horrible act against humanity or simply of pick pocketing, she would have rights. But she’s an innocent woman and so she cannot be protected by the constitution so says the court. Now, what was that about Terri Schiavo receiving full due process again?

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