October 28, 2003

No Last Meal

Maybe someone who's a lawyer can explain this to me. I keep seeing lawyers & "legal experts" on the news, absolutely outraged at the Florida legislature for daring to rescind the starvation order on Terri Schiavo. They say it's against the law due to separation of powers. And that the Supreme Court will surely rule in favour of the husband.

So, my question: how come it's okay for the Governor of a state to stop the execution of a condemned prisoner? Isn't that overriding the powers of the court? Or how about when they pardon someone altogether? Seems like someone like Terri Schiavo should at least have the benefits of the condemned.

(not that a prisoner would ever be starved to death.) (that would be cruel and unusual.)

I appreciate any and all explanations!

Posted by Ithildin at October 28, 2003 6:50 AM | PROCURE FINE OLD WORLD ABSINTHE

This kind of law is barred by the Constitution, Aticle 1, section 9, clause 3 as an 'ex post facto' law. A law of this ilk is one that negatively affects a legal right that has already been accorded. The law passed merely affects Mr. Schiavo and his rights as the legal representative of his wife. It's pretty obvious the Florida legislature wrote the law to 'fit' this particular situation and this husband's rights.

The law is also objectionable because it assumes the legal rights of a citizen for a government interest that is debateable at best (you freepers should be going yipe; you want the gubment deciding for ya?).

I realize that this is an emotional issue.
This is a matter of law. Don't let your emotions get the better of you. The law doesn't give a damn how it makes you feel.

I predict that the Supreme Court will throw this law out unanimously. The Constitution is pretty clear on the issue.

Posted by: cfab at October 28, 2003 10:18 AM

Wrong. Ex Post Facto applies to criminal statutes only.

Posted by: Patterico at October 28, 2003 5:58 PM

OK, as a staffer for the Florida Legislature, there are obvious ethical reasons why I won't publicly comment on the constitutional merits of the statute we just enacted. That said, the executive powers of pardon and clemency apply only in the criminal context: since the state is a party, the executive authority of the state can temper justice with mercy by choosing to spare a convict from the full force of his or her state-imposed sentence. For the state to intervene in civil litigation between private parties is clearly different, although its certainly not unusual for states to bring suit as parens patriae on behalf of all their citizens (most often the AG does this, see, e.g., the tobacco lawuits). Again, I won't speculate as to the significance or consequences of such differences.

Patterico is, of course, right: ex post facto laws are only, by definition, criminal, i.e., making criminal (or imposing a higher degree of criminality on) behavior that was not a crime when it was committed.

Posted by: Dave J at October 29, 2003 11:28 AM

Thanks to everyone who commented and sent me email on the matter. I'm still not sure it makes any more sense to me then before I asked, but I appreciate the attempt to explain it all to a dunderhead like me :)

Posted by: Ith at October 29, 2003 11:51 AM


Basically, it comes down to personaly liberties. The law recognizes the right of people to be DNR, refuse treatment and a number of other things, all that can and often will result in death. This personal freedom is part of our basic foundation. When someone cannot speak for themselves(everyone get those living wills / health care proxies drafted please), the law provides for an "order" of representation. This order determines who speaks for someone without a voice. When married that default is your spouse unless you have declared someone else. Families agonize over these decisions. They are not easy. However, they are made more frequently than we assume. To remove a feeding tube, a ventilator, operate, not operate, all with the knowledge the action will likely if not definately result in death.

Here the Florida legislature overstepped their powers (my opinion) in drafting this law. This is personal, between the doctors and the husband. My sympathy to the parents, but whether I agree or not, Florida was out of line and I hope the Supreme Court rules it unconstitutional (the alternative is unthinkable!).


Posted by: Roberta at October 29, 2003 4:23 PM

I think the separation of powers argument is uncommonly silly, borderline retarded. Legislatures cannot force courts to re-open cases that have been litigated to finality, but this does not mean they can never pass any law that affects the parties involved.

Of course, it's one thing to say that a legal rule is retarded, and another to say that Florida courts won't rule that way.

Posted by: Xrlq at October 29, 2003 9:37 PM