Chapter 9
Law and the End of Life
We come at last to that part of life about which few of us like to think. Though the
therapist may encourage us to “face up to it,” and the financial analyst may warn us to “plan for
it,” most of us prefer to push it to the deep recesses of our consciousness. After all, to “face up
to” or to “plan for” death is to acknowledge its inevitably, something few of us are willing to
dwell on – and the younger we are the less apt we are to do so.
Not so the web of law; indeed, as we shall see, issues surrounding the very inevitable end
of life make up a large and, with the greying of the baby boom generation, a growing segment of
the web.1 Like Shelley’s “traveler,” the law moves with us from “cradle to grave”(Shelley
1820).
In this chapter, we explore law at the end of life. We begin by reviewing law’s modern
role in making the last days, months, years of life’s journey more comfortable. Next, we
contemplate the nexus between law and life’s physical end, including technologies that try to
keep life going longer and longer and the legal ability (or inability) we have to end life when
pain or despair make continuation unbearable. Finally, we briefly describe law’s very ancient
concern with the end in questions surrounding the distribution of property, debts and taxes.
LAW IN THE GOLDEN YEARS: MODERN CONCERNS OF OLD AGE
While the treatment of the aged in this Nation has not been wholly free of discrimination,
such persons, unlike, say, those who have been discriminated against on the basis of race
or national origin, have not experienced a "history of purposeful unequal treatment" or
been subjected to unique disabilities on the basis of stereotyped characteristics not truly
indicative of their abilities. [O]ld age does not define a "discrete and insular" group in
need of "extraordinary protection from the majoritarian political process." Instead, it
marks a stage that each of us will reach if we live out our normal span. Massachusetts
Board of Retirement v. Murgia, 427 U.S. 307, at 313-314, 1976 (per curiam) (citations
deleted from original).
The Murgia Court came about as close to defining “old age” as one will find in American
case law. It is simply the inevitable end game of life that “each of us will reach if we live out our
normal span.” As we discussed in Chapter 6 within the context of early life and childhood, age
demarcations are inherently subjective and arbitrary. This is equally true with regard to the other
end of life’s continuum. For legal purposes, age is both quite determinate (one can calculate in
years, months, days, even seconds) and indeterminate. It is not clear when a child is no longer
appropriately considered a child; nor is it any more clear when a person crosses the threshold to
become elderly. In Murgia, the Court addressed a 14th Amendment equal protection challenge to
a Massachusetts law that set that threshold for uniformed police offers at age 50, mandating
retirement from the force for all who reached that milestone. Significantly, the Justices
determined that age, unlike race, is not a “suspect classification,” and that the state need only
demonstrate a rational basis for making age-related distinctions. The Court reasoned: “Through
mandatory retirement at age 50, the legislature seeks to protect the public by assuring physical
preparedness of its uniformed police. Since physical ability generally declines with age,
mandatory retirement at 50 serves to remove from police service those whose fitness for
uniformed work presumptively has diminished with age. This clearly is rationally related to the
State's objective” (Murgia, at 314-315). (Only Justice Marshall dissented from this view, finding
instead that the state’s argument was entirely irrational).
Some 15 years later, the Court considered a similar challenge to a Missouri constitutional
provision mandating retirement of all judges at age 70.2 Although a bit more divided, a majority
reached a similar conclusion:
The Missouri mandatory retirement provision, like all legal classifications, is founded on
a generalization. It is far from true that all judges suffer significant deterioration in
performance at age 70. It is probably not true that most do. It may not be true at all. But a
State `does not violate the Equal Protection Clause merely because the classifications
made by its laws are imperfect'.... The people of Missouri rationally could conclude that
the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal
sufficiently inadequate, that they will require all judges to step aside at age 70. This
classification does not violate the Equal Protection Clause” (Gregory v. Ashcroft, 501
U.S. 452, 473, 1991) (quoting Murgia at 316).
The Court reiterated this logic in one of the set of opinions delivered at the turn of the 21st
century. In Kimel v. Florida Board of Regents, Justice O’Connor, writing for a 5-4 majority,
stated: “Our Constitution permits States to draw lines on the basis of age when they have a
rational basis for doing so at a class-based level, even if it ‘is probably not true that those reasons
are valid in the majority of cases” ((120 S. Ct. 631, 647 (2000)).3
What Is Old Age? While age is generally measured in years, it is more than objective
chronological fact. To be classified as young or old is in part an individualized subjective
perception, a set of expectations about the collective future, and a function of the contemporary
socioeconomic milieu. Thus, what is understood as old age is a changing phenomenon and
social reality. For example, upon his visit in the 1830s, Tocqueville observed, among many
other things, that the short life expectancy of the period, about 35 years, produced a population
that was restless, full of bravado and willing to take high risks for the thrill of the moment.
Their taste for physical gratifications must be regarded as the original source of that
secret disquietude which the actions of the Americans betray and of that inconstancy of
which they daily ford fresh examples. He who has set his heart exclusively upon the
pursuit of worldly welfare is always in a hurry, for he has but a limited time at his
disposal to reach, to grasp, and to enjoy it.
The recollection of the shortness of life is a constant spur to him. Besides the good things
that he possesses, he every instant fancies a thousand others that death will prevent him
from trying if he does not try them soon. This thought fills him with anxiety, fear, and
regret and keeps his mind in ceaseless trepidation, which leads him perpetually to change
his plans and his abode. (Tocqueville 1835, Book II, Chapter 13)
Indeed, there was no reason to delay gratification, because death was a constant threat to
all who survived birth. The threat of death, of course, haunts us all, but the time horizon for
those who lived in the early 1800s was short by today’s standard, and most people had little
reason to conjure up a long-term life strategy. No doubt, it was precisely that kind of perspective
and expectation that led Alexander Hamilton and Vice President Aaron Burr to a fateful dueling
field in 1804. Left dead at the ripe old age of 49, Hamilton had long surpassed the expected life
span of his birth cohort. In fact, he outlived his own son who had also been killed in a duel three
years earlier.
By the turn of the twentieth century, the average American citizen could expect to live
about 47 years. This was a statistically significant improvement, but socially not a profound one
for the vast majority of the population. Life was hard. Childbirth was risky; childhood was
short; adolescence was nonexistent. Tuberculosis, scarlet fever, small pox, polio, influenza, and
other infectious diseases swept through the population in waves, and only the very strong, the
very lucky, and the very wealthy survived into what today we would consider old age. The
census of 1900 indicates that a rather small minority, four percent (or, about 3.1 million people),
of the American population was 65 or older.
The first half of the 20th century saw general conditions improve with advances in
sanitation, housing, and overall economic well-being. Moreover, treatment of infectious
diseases became much more effective. As a result, people were living longer. In 1940 the ranks
of the 65 and older population had swelled to 9 million, and by 1950 life expectancy had
increased to 68 years.
Quality of life continued to improve during the latter half of the 20th century, with
growing economic prosperity, great strides in nutritional and medical research, more successful
treatment of chronic diseases (such as cancer and heart disease), and the like. As a consequence,
life expectancy has risen steadily to about 77 years in 2000. On the other end of the spectrum,
the infant mortality rate has decreased dramatically. Indeed, since 1950, the infant mortality rate
has dropped from 29.2 (per 1000 live births) to just over seven. This means that more people
survive the first year of life, and a higher percentage of each birth cohort live to middle age and
beyond together. By the year 2000, the 65 and older contingent of the population had climbed to
34.7 million and is projected to bulge to 53.2 million by 2020 as the baby boom generation of the
1950s reach that milestone. Considering the issue from a slightly different perspective, during
the 20th century, the number of persons in the United States under age 65 tripled; while the
number aged 65 or over increased by a magnitude of 11, from 4% to about 16% of the total
population. Meanwhile, the greyest of the grey, those 85 years old or more, now represent the
fastest growing group among the nation’s elderly.
Suffice it to say that old age was not the issue in the 19th century that it has become –
socially, economically, politically, and legally. As the Murgia Court noted, “physical ability
generally declines with age,” and later in Gregory, the Court observed that we can expect to
“suffer significant deterioration in performance” as we advance towards life’s end. Thus, the
20th century Court, unlike its predecessors, could work from the assumption that “if we live out
our normal span,” we can all expect to experience significant deterioration in abilities and
performance.
As we recounted above, the number of people for whom that assumption became a reality
was increasing considerably by the 1920s, and as that happened, the elderly and their unique
problems began to appear on the radar screens of policy makers. The social and economic
convulsions produced by the Great Depression of the 1930s brought the elderly clearly into
focus. Until then, people who lived into their 60s and beyond and who had left the workforce
and hence were no longer earning an income, relied upon a patchwork support system that
included their friends and families, voluntary pension programs by some employers (for a select
number of employees), and private charities, to provide a sufficient level of sustenance to survive
until their ultimate death. During the Depression, private pension systems were wiped out by the
stock market crash, massive unemployment placed most families under extreme economic stress
and unable to care for their elders, and charities were completely swamped. With no cash
reserve and no reliable source of support, older workers fortunate enough to have jobs had no
incentive to quit. Franklin Roosevelt was elected in a landslide in the presidential election of
1932 with a promise to address the mounting economic morass with quick and decisive action.
On January 8, 1934 President Roosevelt announced his intention to provide for Social Security.
The first step was to create, by executive order, a Committee on Economic Security, empowered
to study the problems and devise a concrete set of legislative proposals. The Committee's
recommendations were presented to Congress in January of 1935, and the Social Security Act
(SSA) of 1935 was signed into law on August 14.4
The SSA created a trust from which disbursements would be made to older citizens (65
years and over), funded by a payroll tax and employer contributions. The act was a major piece
of the New Deal package, guaranteeing a security benefit to the nation’s oldest citizens. It was
designed also to produce an economic stimulus. Older workers would retire from their jobs,
making room for younger, presumably more productive ones who desperately needed
employment, and they would spend their social security checks, thus injecting new cash into the
struggling economy.
Roosevelt’s plan was not without its detractors, however, and the legislative enactment
immediately triggered litigation. The Act’s opponents argued, among many other points, that
Congress had violated its Constitutional authority to create policy that would enhance the
“general welfare” by extending benefits only to one segment of the population, old people, and
that it had breached the Tenth Amendment power of the states to address social policy of this
kind (see e.g., Wolfskill 1962).5
Justice Cardozo, writing for the majority upholding the Act’s constitutionality, stated:
The purge of nation-wide calamity that began in 1929 has taught us many lessons. Not
the least is the solidarity of interests that may once have seemed to be
divided....Spreading from State to State, unemployment is an ill not particular but
general, which may be checked, if Congress so determines, by the resources of the
Nation....The hope behind this statute is to save men and women from the rigors of the
poor house as well as from the haunting fear that such a lot awaits them when journey's
end is near. Congress did not improvise a judgment when it found that the award of
old age benefits would be conducive to the general welfare....Among the relevant facts
are these: The number of persons in the United States 65 years of age or over is
increasing proportionately as well as absolutely. What is even more important the number
of such persons unable to take care of themselves is growing at a threatening pace. More
and more our population is becoming urban and industrial instead of rural and
agricultural. The evidence is impressive that among industrial workers the younger men
and women are preferred over the older. In times of retrenchment the older are commonly
the first to go, and even if retained, their wages are likely to be lowered....With the loss of
savings inevitable in periods of idleness, the fate of workers over 65, when thrown out of
work, is little less than desperate....
The problem is plainly national in area and dimensions. Moreover, laws of the separate
states cannot deal with it effectively. Congress, at least, had a basis for that belief. States
and local governments are often lacking in the resources that are necessary to finance an
adequate program of security for the aged.... (Helvering v. Davis, 301 US 619, 641-644,
1937).(notes deleted from original).
Thus, the SSA passed constitutional muster, and in 1940 the first benefits were paid to workers,
65 and older, who had retired. Although it has been amended a number of times since, usually
to expand benefits, the legislation has proven to be among the most politically popular and
resilient policies of the 20th century. By mid-century, the 65+ segment of the population, whose
ranks had swelled to about 15 million, began to organize for the first time to promote their
interests through the legislative process and through the courts.6 In 1958, for example, the
American Association of Retired Persons (AARP) was founded, and by the end of 1999, the
organization could boast a membership of over 30 million.7
The SSA of 1935 is a significant landmark. First, it legally defined old age as beginning
at 65 years. Thus, we were given a fixed legal definition of old age at a time when length of life
has substantially increased, and when, from a range of other perspectives, the threshold marking
senior status is clearly not fixed. Moreover, as Friedman (1984: 9) has argued, by mandating
retirement from the active workforce at age 65 in order to receive benefits, it was “an act of age
discrimination,” a matter that has been debated since the SSA was enacted and become
increasingly heated as life-expectancy has grown longer and people wish to keep working longer.
Thus, one of the primary targets of the AARP and affiliated organizations was age discrimination
in employment, and their lobbying efforts soon began to bear fruit. By 1961 New York and
California had added age discrimination to civil rights legislation prohibiting discriminatory
hiring and firing practices with regard to race.8 And in 1964, the U.S. Congress enacted the
Older Americans Act (OAA) as part of President Lyndon Johnson’s Great Society program, one
stated objective of which was to promote “opportunity for employment with no discriminatory
personnel practices because of age.”9 The Age Discrimination in Employment Act (ADEA) of
1967 made it illegal for private sector employers (with 25 or more employees) to refuse to hire,
or to fire, a worker because of age.10 In 1994, Congress amended the ADEA, extending
coverage to all state and local governments (29 U. S. C. §§621 et seq. (1994 ed. and Supp. III),
which, as we observed above, the Supreme Court invalidated in Kimel, finding that state
agencies need only demonstrate a rational basis for discriminating according to age.
Litigation claiming workplace age discrimination has been robust under ADEA; however,
providing convincing evidence and demonstrating clear animus is inherently difficult (see e.g.,
Crawshaw-Lewis 1996). For example, a company might legitimately choose not to promote or
refuse to hire an older employee for salary reasons. To the employee, the result is discriminatory
and the cost-saving rationale a mere pretext. Under the law it is not, unless there is evidence that
the decision was predicated by intentional discrimination. The Supreme Court held salary and
discrimination to be analytically distinct in Hazen Paper Co. v. Biggins (507 U.S. 604, 1993),
with the result being that executive employment decisions have been easier to defend. The Court
also held that decisions based upon stereotyped characterization and expectation that disparage
older workers are invalid under ADEA provisions. Again, however, clear evidence that
employment decisions hinged upon discriminatory stereotypes is necessary. Age-related
comments by a supervisor, referring to an employee as an “old fart,” for example, are not of
themselves sufficient to prove age discrimination.11
A second issue targeted by the AARP and other grey lobby organizations is medical care.
As people live longer, the likelihood that they will require extended medical care and
hospitalization increases substantially. Indeed, the growing ranks of the elderly translates into a
considerable increase in the number of potentially infirm citizens with significant medical needs
(see e.g., Crimmins and Ingegneri 1993). In addition, the second half of the 20th century
witnessed a boom in the nursing home and hospice care industries. As the Supreme Court aptly
noted in Murgia, “physical ability generally declines with age” (427 US 307, 315), and in
Gregory, “the threat of deterioration at age 70 is ... great” (501 US 452, 473). Congress
responded in 1965 with legislation establishing the Medicare (42 U.S.C. 1395 et seq.) and the
Medicaid (42 U.S.C. 1396 et seq.) programs as Title XVIII and Title XIX of the Social Security
Act.12
The Medicare program (Title XVIII) was established with two parts, each with its own
trust fund. One part was the Hospital Insurance (HI) program to cover hospital costs, and the
Supplementary Medical Insurance (SMI) program covers expenses not covered by HI. Benefits
under each program are extended to all who have participated in the Social Security system.
Medicaid (Title XIX) was established as a Federal-State matching entitlement program in
response to the widely perceived inadequacy of "welfare medical care" under public assistance.
Medicaid was designed to ensure that low income individuals and families would be provided
with adequate care, and the program immediately became the largest source of funding for
medical and health-related services for the nation’s “have nots,” many of whom are elderly. In
1996, for example, more than 36 million people received Medicaid benefits, at a cost of $160
billion dollars.13
Because each state sets its own standards and contingencies in order to administer the
program under broad Federal guidelines, the system has become a complex web of varying
eligibility and benefit regulations.14 Needless to say, the legislative extensions to the Social
Security Act, intended to address the special health and medical needs that accompany advancing
age have made “eldercare” advocacy (both political and legal) a growth industry. Indeed, since
1965, a plethora of new lobbying organizations has become active across the state legislatures to
promote expansion of the programs’ coverage.
Moreover, the federal and state courts have been kept busy addressing a wide range of
issues that have been produced by the programs’ administration. Once the state has decided to
institute a policy extending benefits, questions of eligibility quickly become nontrivial, and the
state may not arbitrarily reduce or terminate benefits to those receiving them. These have been
heavily litigated issues.15 In addition, the government assumes some responsibility for
guaranteeing an acceptable quality of medical and health care services and facilities, and each
state has implemented an elaborate system of regulations. Finally, criminal law has come into
play in response to serious incidents of fraud, false claims, reports and the like. In short, the
decision to extend medical benefits to the nation’s elderly through the Medicare and Medicaid
programs gave rise to a virtual cottage industry of lawmaking, litigation, and enforcement.
LAW AND THE END OF LIFE: DEATH AND DYING
Just as the present technological revolution is jumbling our way of thinking about birth
and life’s inception, it is confusing our ideas about death. Where, as we suggested above, an
average American in 1915 could expect to die at around age 50, he may now expect to live until
he is 76.16 These impressive gains in life expectancy result from a number of factors including
better and more plentiful foodstuffs,17 increased knowledge in the areas of nutrition,18 health,19
and exercise,20 and much less dangerous living21 and working22 conditions than our forebear
faced -- all the result of law. They also result, of course, from stunning advances in medical
technologies – technologies that can truly be double-edged swords. For while many are kept
alive longer, many of those are not necessarily kept alive better. And just as the law is struggling
to catch up with technologies that are redefining the beginning of life, it is scrambling to keep
pace with technologies that are redefining the end of life. This section explores law’s attempt to
stake out territory in the “brave new world” of death. Here, we see very clearly, as much, if not
more than in any area we have investigated, the difficult role of law in maintaining the delicate
balance between individual liberty and social order. For here, the question becomes do I or does
society define the end of my life?
What Is Death?
As the law records your birth, so does it define your death -- and has, for a long time.
For over 200 years, the common law definition of death was the “cessation of life, [the]
permanent [irreversible] cessation of all vital signs.”23 Generally referred to as the
cardiopulminary definition of death, one’s demise was legalized upon “the absence of pulse,
heartbeat, and breathing” (Kibble-Smith 1985).
By the 1980s, medical developments had raced ahead of law sufficiently to make the
mere lack of breath, pulse, and beating heart inadequate as a legal definition and prompting
widespread adoption of a “whole brain death” delineation. Today, every state but New Jersey
and New York employs some variation on the so-called “whole brain death” standard. Thus, for
example, in addition to the “cessation of circulatory and respiratory functions,” Maryland law
adds the “[i]rreversible cessation of all functions of the entire brain, including the brain stem”
(Md. Health-General Code Ann. § 5-202 (1999)).
But, who makes the “cessation” call? And under what circumstances is it made?
Clearly, medical technology can keep the heart beating, the lungs respirating, the body feeding
long after the person has ceased being able to do so on her own. Moreover, and notwithstanding
the natural termination of life-sustaining functions, is life lived in excruciating pain or
progressive loss of control life worth living? To whom does this decision fall? Over the past
several decades, judges have often had to make these difficult calls.
Law & the Individual’s Decision to Die
In many ways, law’s modern brush with such quality of death issues began “[o]n the
night of April 15, 1975, [when,] for reasons still unclear, Karen Quinlan ceased breathing for at
least two 15 minute periods” (In the Matter of Karen Quinlan, 70 N.J. 10, 23 (Supreme Court of
New Jersey, 1976). The lapses were critical and tragic, leaving Karen comatose and “in a
chronic and persistent ‘vegetative’ state, having no awareness of anything or anyone around her
and existing at a primitive reflex level” (Id.). According to expert medical witnesses, she had
lost the “more highly developed [part of the] brain which is uniquely human which controls our
relation to the outside world, our capacity to talk, to see, to feel, to sing, to think” (Id., 24).
Moreover, throughout a long hospital stay in intensive care, Karen was fed by way of a nasal-
gastro tube and her breathing was assisted by way of a respirator, without which experts agreed
she probably would not live long. Despite her condition and despite the fact that no form of
treatment could cure or even improve her status, Karen’s physicians and numerous medical
experts contended that “removal from the respirator would not conform to medical practices,
standards and traditions” (Id., 25). In purely biological terms, Karen was not “brain dead.”
What experts, whether legal or medical, divine based on complex statutory criteria or
scientific standards, may be quite different from the layperson’s simple emotional or sensory
reaction. And, to Joseph Quinlan the perpetually vegetative being whose life hung on the
function of a respirator was no longer the daughter he had loved so much. His daughter was
dead, and he wanted the wasted the body that once housed her spirit and higher brain dead, too.
Thus, Mr. Quinlan asked to be appointed his daughter’s guardian. In addition, he requested that
the grant of guardianship give him an express power to authorize the discontinuance of all
extraordinary medical procedures that sustained Karen's vital processes. Mr. Quinlan argued that
his daughter had a right, grounded in privacy interests, to refuse bodily intrusions such as the
supposedly life-sustaining respirator. Further, he contended, that in the absence of her own
competency, her guardian, carrying out her pre-coma wishes, should be able to assert the right on
her behalf.
A unanimous New Jersey Supreme Court agreed with Karen’s father. “We have no
hesitancy,” the Court asserted, “in deciding . . . that no external compelling interest of the State
could compel Karen to endure the unendurable, only to vegetate a few measurable months with
no realistic possibility of returning to any semblance of cognitive or sapient life” (Quinlan, 39).
Relying particularly on Griswold v. Connecticut24 and Roe v. Wade,25 the New Jersey Court
asserted an “unwritten constitutional right of privacy” in the U.S. Constitution, “[p]resumably . .
. broad enough to encompass a patient's decision to decline medical treatment under certain
circumstances, in much the same way as it is broad enough to encompass a woman's decision to
terminate pregnancy under certain conditions” (Quinlan, 40). The state’s interest in “the
preservation and sanctity of human life,” according to the Court, “weakens and the individual's
right to privacy grows as the degree of bodily invasion increases and the prognosis dims.
Ultimately there comes a point at which the individual's rights overcome the State interest”
(Quinlan, 40-41). Karen’s case, in the opinion of the Court, had clearly passed that point.
Indeed, so clearly had it passed the point that Karen herself could no longer assert her interests.
Thus,
If a putative decision by Karen to permit this non-cognitive, vegetative existence to
terminate by natural forces is regarded as a valuable incident of her right of privacy, as
we believe it to be, then it should not be discarded solely on the basis that her condition
prevents her conscious exercise of the choice. The only practical way to prevent
destruction of the right is to permit the guardian and family of Karen to render their best
judgment, subject to the qualifications hereinafter stated, as to whether she would
exercise it in these circumstances. If their conclusion is in the affirmative this decision
should be accepted by a society the overwhelming majority of whose members would,
we think, in similar circumstances, exercise such a choice in the same way for
themselves or for those closest to them. It is for this reason that we determine that
Karen's right of privacy may be asserted in her behalf, in this respect, by her guardian
and family under the particular circumstances presented by this record (at 40-41).26
In spite of an increasing number of so-called “right to die” cases arising in the years following
the Quinlan decision,27 the U.S. Supreme Court avoided the issue for more than a decade until
confronted in its 1989-90 Term with the case of a young Missouri woman, Nancy Cruzan.
Though the circumstances of her incompetency were less mysterious than those of Karen
Quinlan’s, Nancy Cruzan faced a very similar situation.
In 1983, Cruzan lost control of her car, the ultimate result being a “persistent vegetative
state” of life (Cruzan v. Missouri Department of Health, 497 U.S. 261, 266 (1989)). Thereafter,
Cruzan was kept alive by means of artificial nutrition and hydration. After concluding that their
daughter would never regain her mental faculties, Nancy’s parents sought court authorization for
termination of the artificial procedures. Their request was granted by a Missouri State trial court
which found that Nancy “had a fundamental right under the State and Federal Constitutions to
refuse or direct the withdrawal of ‘death prolonging procedures.’”28 Moreover, the trial court
concluded that Nancy’s conversations with a housemate some years earlier, established her wish
to terminate the procedures. The Missouri Supreme Court, however, disagreed, refusing to read
a substantial right to privacy into either the federal or Missouri Constitutions, finding a strong
state policy in favor of preservation of life embodied in the Missouri Living Will statute, and
dismissing as “unreliable” Nancy’s wishes as expressed to her former roommate (Cruzan, 268).
The U.S. Supreme Court granted cert to consider the question whether an individual, suffering
circumstances such as those of Cruzan, has a right under the United States Constitution which
would require hospitals to withdraw life-sustaining treatment.
Writing for a bare majority,29 Chief Justice Rehnquist upheld the Missouri Supreme
Court decision, reasoning that the state has a general interest in “the protection and preservation
of human life,” as well as more particular interests in safeguarding incompetents from potential
abuses by surrogates. The “United States Constitution [does not] forbid . . . the establishment of
[such] procedural requirement[s] by . . . State[s]”(Cruzan, 280). In short, the Court deferred to
states’ determinations about the appropriateness of terminating treatment for incompetent
patients. Moreover, it indirectly encouraged the use of “living will” documents as more
determinative of patients’ ultimate wishes than the sort of thoughtless conversations Ms. Cruzan
had had with her housemate before the accident.
Nevertheless, the Court did recognize a longstanding common law right to refuse medical
treatment (Cruzan, 270). The Court, in addition, explicitly recognized a constitutionally
protected “liberty interest” to refuse life saving procedures. Indeed, according to the Chief
Justice, had the case involved a competent individual, “we assume that the United States
Constitution would grant [her] a constitutionally protected right to refuse lifesaving hydration
and nutrition” (Cruzan, 229). The question remained, however, does the right to refuse infer a
right to die?
Just twenty-one days before the Supreme Court issued its Cruzan decision, in Michigan,
54-year old Janet Adkins “died of an injection of potassium chloride in the back of a 1968
Volkswagen camper van.”30 Ms. Adkins had been diagnosed with Alzheimer's disease and,
according to her husband, wanted to die. She was assisted in her efforts by then little known
medical pathologist, Dr. Jack Kevorkian.
Of course, Dr. Kevorkian would become very well-known – indeed, a full-blown national
celebrity – during the 1990s, as the country’s foremost crusader and activist for legalizing
assisted suicide. Through public appearances, writings (see esp. Kevorkian 1991), and, most
especially, through often openly assisting in or presiding at more than 100 deaths,31 Kevorkian,
to a large degree, single-handedly framed the “right-to-die” debate during the last decade of the
twentieth century.
Despite his crucial public role, however, Kevorkian’s actual legal influence was locally
limited to Michigan, where he kept state prosecutors, judges, juries, and legislators extremely
busy throughout decade arresting, trying, and aiming legislation at him until finally managing to
convict him of second-degree murder in 1999.32
While Kevorkian’s exploits grabbed the public limelight, the campaign for a legal “right
to die” proceeded on several fronts, leading, in 1997, to the U.S. Supreme Court. Two fact
scenarios, two separate constitutional claims, and two Circuit Court opinions a continent apart
led to the Court’s first – and to date, only set of rulings on physician-assisted suicide.
In Washington, four doctors and their gravely ill patients filed suit against the State,
claiming that its ban on assisted suicide violated the Due Process Clause by inhibiting the
personal choices of mentally competent, terminally ill adults to commit physician-assisted
suicide. The Washington plaintiffs won favorable rulings from a U.S. District Court
(Compassion in Dying v. Washington, 850 F. Supp. 1454 (WD Wash. 1994)) and the Ninth
Circuit (Compassion in Dying v. Washington, 79 F.3d 790, 798 (1996), en banc).
Meanwhile, in New York, a group of physicians and their patients challenged that state’s
ban on Equal Protection grounds, claiming that New York’s practice allowing one class of
patients to hasten their deaths by directing the removal of life-support systems, while disallowing
others wishing to hasten their deaths by self-administering prescribed drugs accorded different
treatment not rationally related to any legitimate state interests. There, a trial court ruled against
the plaintiffs (Quill v. Koppell, 870 F. Supp. 78 (SDNY 1994)), but the Second U.S. Circuit
agreed with their claim (Quill v. Koppell, 80 F.3d 716 (1996)).
The Supreme Court reversed both Circuits. Thus, in the Washington case – arguably, the
more important of the two – Chief Justice Rehnquist, writing for the Court, emphatically asserted
that
[t]he history of the law's treatment of assisted suicide in this country has been and
continues to be one of the rejection of nearly all efforts to permit it. That being the case,
our decisions lead us to conclude that the asserted “right” to assistance in committing
suicide is not a fundamental liberty interest protected by the Due Process Clause.
(Washington v. Glucksberg, 521 U.S. 702, 728 (1997)).
The High Court having found no fundamental liberty interest, the state needed to demonstrate
only that its ban was rationally related to legitimate government interests. According to the
Chief Justice, the state had numerous such stakes, including:
an “unqualified interest in the preservation of human life.”. . . [A]n interest in preventing
suicide, and in studying, identifying, and treating its causes. . . .[A]n interest in protecting
the integrity and ethics of the medical profession. . . . [A]n interest in protecting
vulnerable groups--including the poor, the elderly, and disabled persons--from abuse,
neglect, and mistakes. . . . [And, an interest in avoiding] the path to voluntary and
perhaps even involuntary euthanasia. (Glucksberg, at 728-31).
In the New York case, too, the Court upheld the state bar on physician-assisted suicide, easily
dismissing the Equal Protection claim. Again, the Chief Justice:
On their faces, neither New York's ban on assisting suicide nor its statutes permitting
patients to refuse medical treatment treat anyone differently than anyone else or draw any
distinctions between persons. Everyone, regardless of physical condition, is entitled, if
competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist
a suicide. . . . [W]e think the distinction between assisting suicide and withdrawing
life-sustaining treatment, a distinction widely recognized and endorsed in the medical
profession and in our legal traditions, is both important and logical; it is certainly rational
(Vacco v. Quill, 521 U.S.793, 800 (1997)).
The effect of the Court’s 1997 rulings was to leave in the hands of the individual states
the decision to allow or ban assisted suicide. To date, states overwhelmingly have chosen to err
on the conservative side of banning the practice. Hence, 38 states explicitly criminalize assisted
suicide by means of statute. Six other states and the District Columbia may prosecute assisted
suicides as common law crimes. In five states the law is unclear (Pratt 1999).
Only in Oregon is physician-assisted suicide a clearly legal option. The Oregon Death
with Dignity Act33 began in 1994 as a citizen initiative, passed by voters on a slim 51% majority.
Implementation was delayed by court injunction until 1997 when a legislative referendum asking
voters to repeal the Act was rejected by Oregonians. The Act allows terminally ill Oregon
residents to use prescriptions obtained from their physicians for self-administered, lethal
medications. Ending one's life in accordance with the law does not constitute illegal suicide.
While legalizing physician assistance, the Act specifically prohibits euthanasia, where a
physician or other person directly administers a medication to end another's life.34 In the first
full year of its operation, 23 people received legal prescriptions for lethal medications, of which
15 died after taking their lethal medications, six died from their underlying illness, and two
remained alive.35
In reaction specifically to the Oregon legislation, in 1999, the U.S. House of
Representatives passed The Pain Relief Promotion Act of 1999(H. R. 2260, 106th Cong., 1st
sess.). The bill, on which the Senate had not acted as of January 2000, would effectively
overturn the Oregon Death with Dignity law by barring “doctors from using federally controlled
drugs such as morphine to cause death” (Koch 1999).
Law & the State’s Decision to End Life
Overwhelmingly, then, governments in the United States have constructed high legal
barriers to willful death. At the same time, however, governments across the country have not
been adverse to imposing death on the unwilling through capital punishment. Indeed, the vast
majority of jurisdictions --38 states and the federal government – currently authorize the death
penalty as punishment for certain crimes. (See Tables 1 and 2)
TABLE 1
CAPITAL OFFENSES, BY STATE
Alabama. Capital
murder with a finding
of at least 1 of 9
aggravating
circumstances (Ala.
Code §13A-5-40 and
§13A-5-49).
Arizona. First-degree
murder accompanied
by at least 1 of 10
aggravating factors.
Arkansas. Capital
murder (Ark. Code
Ann. 5-10-101) with a
finding of at least 1 of
10 aggravating
circumstances;
treason.
California. Firstdegree murder with
special circumstances;
train wrecking;
treason; perjury
causing execution.
Colorado. Firstdegree murder with at
least 1 of 13
aggravating factors;
treason. Capital
sentencing excludes
persons determined to
be mentally retarded.
Connecticut. Capital
felony with 9
categories of
aggravated homicide
(C.G.S. 53a-54b).
Delaware. Firstdegree murder with
aggravating
Kansas. Capital
murder with 7
aggravating
circumstances (KSA
21-3439). Capital
sentencing excludes
persons determined to
be mentally retarded.
New York. Firstdegree murder with 1
of 12 aggravating
factors. Capital
sentencing excludes
persons determined to
be mentally retarded.
Kentucky. Murder
with aggravating
factors; kidnaping
with aggravating
factors.
North Carolina.
First-degree murder
(N.C.G.S. 14-17).
Louisiana. Firstdegree murder;
aggravated rape of
victim under age 12;
treason (La. R.S.
14:30, 14:42, and
14:113).
Maryland. Firstdegree murder, either
premeditated or during
the commission of a
felony, provided that
certain death
eligibility
requirements are
satisfied.
Ohio. Aggravated
murder with at least 1
of 8 aggravating
circumstances.
(O.R.C. secs. 2903.01,
2929.01, and
2929.04).
Oklahoma. Firstdegree murder in
conjunction with a
finding of at least 1 of
8 statutorily defined
aggravating
circumstances.
Oregon. Aggravated
murder (ORS
163.095).
Mississippi. Capital
murder (97-3-19(2)
MCA); aircraft piracy
(97-25-55(1) MCA).
Pennsylvania. Firstdegree murder with 18
aggravating
circumstances.
Missouri. First-degree
murder (565.020
RSMO).
South Carolina.
Murder with 1 of 10
aggravating
circumstances (§ 163-20(C)(a)). Mental
retardation is a
mitigating factor.
Montana. Capital
murder with 1 of 9
aggravating
circumstances (46-18-
circumstances.
Florida. First-degree
murder; felony
murder; capital drug
trafficking.
Georgia. Murder;
kidnaping with bodily
injury or ransom
where the victim dies;
aircraft hijacking;
treason.
Idaho. First-degree
murder; aggravated
kidnaping.
Illinois. First-degree
murder with 1 of 15
aggravating
circumstances.
Indiana. Murder with
16 aggravating
circumstances (IC 3550-2-9). Capital
sentencing excludes
persons determined to
be mentally retarded.
303 MCA); capital
sexual assault (45-5503 MCA).
Nebraska. Firstdegree murder with a
finding of at least 1
statutorily-defined
aggravating
circumstance.
Nevada. First-degree
murder with 13
aggravating
circumstances.
New Hampshire. Six
categories of capital
murder (RSA 630:1
and RSA 630:5).
New Jersey.
Purposeful or knowing
murder by one's own
conduct; contract
murder; solicitation by
command or threat in
further-ance of a
narcotics conspiracy
(NJSA 2C:11-3C).
New Mexico. Firstdegree murder in
conjunction with a
finding of at least 1 of
7 aggravating
circumstances
(Section 30-2-1A,
NMSA).
South Dakota. Firstdegree murder with 1
of 10 aggravating
circumstances; aggravated kidnaping.
Tennessee. Firstdegree murder.
Texas. Criminal
homicide with 1 of 8
aggravating
circumstances (TX
Penal Code 19.03).
Utah. Aggravated
murder (76-5-202,
Utah Code annotated).
Virginia. First-degree
murder with 1 of
12 aggravating
circumstances (VA
Code
§ 18.2-31).
Washington.
Aggravated firstdegree
murder.
Wyoming. Firstdegree murder.
Table 2
FEDERAL LAWS PROVIDING FOR THE DEATH PENALTY
8 U.S.C. 1342 —
Murder related to the
smuggling of aliens.
18 U.S.C. 32-34 —
Destruction of
aircraft, motor
vehicles, or related
facilities resulting in
death.
18 U.S.C. 36 —
Murder committed
during a drug-related
drive-by shooting.
18 U.S.C. 37 —
Murder committed at
an airport serving
international civil
aviation.
18 U.S.C. 115(b)(3)
[by cross-reference to
18 U.S.C. 1111] —
Retaliatory murder of
a member of the
immediate family of
law enforcement
officials.
18 U.S.C. 241, 242,
245, 247 — Civil
rights offenses
resulting in death.
18 U.S.C. 351 [by
cross-reference to 18
U.S.C. 1111] —
Murder of a member
of Congress, an
18 U.S.C. 1114 —
Murder of a Federal
judge or law
enforcement official.
18 U.S.C. 1958 —
Murder for hire.
18 U.S.C. 1116 —
Murder of a foreign
official.
18 U.S.C. 1992 —
Willful wrecking of a
train resulting in
death.
18 U.S.C. 1118 —
Murder by a Federal
prisoner.
18 U.S.C. 1119 —
Murder of a U.S.
national in a foreign
country.
18 U.S.C. 1120 —
Murder by an escaped
Federal prisoner
already sentenced to
life imprisonment.
18 U.S.C. 1121 —
Murder of a State or
local law enforcement
official or other
person aiding in a
Federal investigation;
murder of a State
correctional officer.
18 U.S.C. 1201 —
Murder during a
kidnaping.
18 U.S.C. 1203 —
Murder during a
18 U.S.C. 1959 —
Murder involved in a
racketeering offense.
18 U.S.C. 2113 —
Bank-robbery-related
murder or kidnaping.
18 U.S.C. 2119 —
Murder related to a
carjacking.
18 U.S.C. 2245 —
Murder related to rape
or child molestation.
18 U.S.C. 2251 —
Murder related to
sexual exploitation of
children.
18 U.S.C. 2280 —
Murder committed
during an offense
against maritime
navigation.
18 U.S.C. 2281 —
Murder committed
during an offense
against a maritime
fixed platform.
important executive
official, or a Supreme
Court Justice.
18 U.S.C. 794 —
Espionage.
18 U.S.C. 844(d), (f),
(i) — Death resulting
from offenses
involving
transportation of
explosives,
destruction of
government property,
or destruction of
property related to
foreign or interstate
commerce.
18 U.S.C. 924(i) —
Murder committed by
the use of a firearm
during a crime of
violence or a drugtrafficking crime.
18 U.S.C. 930 —
Murder committed in
a Federal Government
facility.
hostage taking.
18 U.S.C. 1503 —
Murder of a court
officer or juror.
18 U.S.C. 1512 —
Murder with the intent
of preventing
testimony by a
witness, victim, or
informant.
18 U.S.C. 2332 —
Terrorist murder of a
U.S. national in
another country.
18 U.S.C. 2332a —
Murder by the use of a
weapon of mass
destruction.
18 U.S.C. 2340 —
Murder involving
torture.
18 U.S.C. 1513 —
Retaliatory murder of
a witness, victim, or
informant.
18 U.S.C. 2381 —
Treason.
18 U.S.C. 1716 —
Mailing of injurious
articles with intent to
kill or resulting in
death.
21 U.S.C. 848(e) —
Murder related to a
continuing criminal
enterprise or related
murder of a Federal,
State, or local law
enforcement officer.
18 U.S.C. 1751 [by
cross-reference to 18
U.S.C. 1111] —
Assassination or
kidnaping resulting in
the death of the
President or Vice
President.
49 U.S.C. 1472-1473
— Death resulting
from aircraft
hijacking.
18 U.S.C. 1091 —
Genocide.
18 U.S.C. 1111 —
First-degree murder.
_________________________________________________________________
Though a widespread statutory option throughout the nation, actual imposition of the
death penalty is highly concentrated in five, primarily southern, states. Thus, throughout the 21year period from January 1, 1977--the year following the Supreme Court’s reimposition of the
death penalty (Gregg v. Georgia, 428 U.S. 153 (1976))36 after a four year hiatus (Furman v.
Georgia, 408 U.S. 238 (1972))37-- to December 31, 1998, 500 convicts in 18 states were put to
death. However, nearly two-thirds of those executions occurred in Texas, Virginia, Florida,
Missouri, and Louisiana (Snell 1999).
American laws’ contemporary entanglement with state-sponsored death began in 1972
when the Supreme Court considered the cases of three indigent African-American convicts
sentenced to death in the states of Georgia and Texas. (Furman) Two of the men had been
convicted of rape; one was a murderer. At issue before the Court was whether the imposition
and execution of the death penalty constituted “cruel and unusual punishment” within the
meaning of the Eighth and Fourteenth Amendments. In a decision featuring five concurrences
and four dissents, the Court judged that in these cases it did, effectively vacating death sentences
nationwide. Although Justices Brennan and Marshall argued that capital punishment was per se
unconstitutional, the prevailing view – that of Justices Douglas, White, and Stewart – hinged on
the basically standardless manner in which the penalty was imposed. According to Justice
Stewart:
These death sentences are cruel and unusual in the same way that being struck by
lightning is cruel and unusual. For, of all the
people convicted of rapes and murders in 1967 and 1968, many just
as reprehensible as these, the petitioners are among a
capriciously selected random handful upon whom the sentence of death has in fact been
imposed. My concurring Brothers have demonstrated that, if any basis can be discerned
for the selection of these few to be sentenced to die, it is the constitutionally
impermissible basis of race. But racial discrimination has not been proved, and I put it to
one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate
the infliction of a sentence of death under legal systems that permit this unique penalty to
be so wantonly and so freakishly imposed. (Stewart, J., concurring, at (Citations
omitted)).
Over the course of the next several years, the death penalty came to a halt in the United
States, as individual jurisdictions attempted to fashion legislation that would meet constitutional
muster. Then, in 1976, five cases, consolidated for review, and covering death penalty statutes
in Georgia, Florida, Texas, Louisiana, and North Carolina, were presented to the Court.
At issue in the primary case, Gregg v. Georgia, 428 U.S. 153 (1976). was the imposition of the
death penalty for murder resulting from an armed robbery. The penalty, sentenced to Troy
Gregg, was applied following a set of procedures mandated by the Georgia legislature following
Furman. And, the question before the Court was whether the imposition of the sentence of death
for the crime of murder under the revised laws of the five states violated the Eighth and
Fourteenth Amendments. The Court ruled that in the cases of Georgia, Florida, and Texas it did
not, thus effectively reinstituting capital punishment.
Again, the Court was divided both on reasoning and on judgment. However, Justices
Stewart, Powell, and Stevens, announcing the judgment of the Court upholding the law in three
states, concluded that “[t]he punishment of death for the crime of murder does not, under all
circumstances, violate the Eighth and Fourteenth Amendments”(Gregg). According to Justice
Stewart, the judiciary has a limited role to play in criminal sentencing:
[I]n assessing a punishment selected by a democratically elected legislature against the
constitutional measure, we
presume its validity. We may not require the legislature to select the least severe penalty
possible so long as the penalty selected
is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden
rests on those who would attack the judgment of the representatives of the people.(Gregg,
at 175)38
Since Gregg, the Supreme Court’s death penalty docket has largely sought to clarify procedural
bounds to capital punishment.39 Thus, the Court has held that the imposition of the death penalty
for rape alone is “grossly disproportionate” and thus unconstitutional (Coker v. Georgia, 433
U.S. 584 (1977)). In addition, the Court has ruled that the death penalty is age-limited, setting a
threshold of 18 years on executions (Roper v. Simmons, 543 U.S. 551 (2005). And, it has held that
executing the mentally retarded is unconstitutional (Atkins v. Virginia, 536 U.S. 304 (2002)).
In
favor of capital defendants, the Court has ruled that sentencing juries must be informed of
mitigating circumstances (Lockett v. Ohio, 438 U.S. 586 (1978)). But, to the presumed detriment
of those facing the death penalty, it has upheld the use of “victim impact statements” at the
sentencing phase of trial (Payne v. Tennessee, 501 U.S. 808 (1991)).
The Poverty Connection. Among death penalty controversies, the most troublesome are those
revolving around the disproportionate application of the sanction to certain groups – notably, the
poor and minorities. According to the American Civil Liberties Union, “[n]inety percent of
criminal defendants in this country who are charged with a capital crime are indigent when
arrested, and virtually all are penniless by the time their case reaches the appeals stage. In
California, the state with the largest death row population, less than 2 percent were represented at
trial by retained counsel.”42 For the vast majority of poor capital defendants the problem, more
often than not, is one of counsel. Though guaranteed legal representation through the first
appeal,43 by most assessments, indigent capital defendants tend to receive “grossly unqualified”
assistance (Coyle, Lavelle, and Strasser1990).44 Stephen Bright, Director of the Southern Center
for Human Rights, provides the following tragic example:
After years in which she and her children were physically abused by her adulterous
husband, a woman in Talladega County, Alabama, arranged to have him killed.
Tragically, murders of abusive spouses are not rare in our violent society, but seldom are
they punished by the death penalty. Yet this woman was sentenced to death. Why?
It may have been in part because one of her court-appointed lawyers was so drunk that
the trial had to be delayed for a day after he was held in contempt and sent to jail. The
next morning, he and his client were both produced from jail, the trial resumed, and the
death penalty was imposed a few days later. It may also have been in part because this
lawyer failed to find hospital records documenting injuries received by the woman and
her daughter, which would have corroborated their testimony about abuse. And it may
also have been because her lawyers did not bring their expert witness on domestic abuse
to see the defendant until 8 p.m. on the night before he testified at trial (Bright 1994:
1835-1836).45
In fact, the majority of high-rate death penalty states do not have public defender systems,
relying instead on court-appointed lawyers, underpaid and with no particular experience in the
very special realm of capital punishment. According the American Bar Association:
Jurisdictions that employ the death penalty have proven unwilling to
establish the kind of legal services system that is necessary to ensure that defendants
charged with capital offenses receive the defense they require. Many death penalty states
have no working public defender programs, relying instead upon scattershot methods for
selecting and supporting defense counsel in capital cases. For example, some states
simply assign lawyers at random from a general list - a scheme destined to identify
attorneys who lack the necessary qualifications and, worse still, regard their assignments
as a burden. Other jurisdictions employ "contract" systems, which typically channel
indigent defense business to attorneys who offer the lowest bids. Other states use public
defender schemes that appear on the surface to be more promising, but prove in practice
to be just as ineffective. (ABA 1998: 224)
Nor, is the problem limited to the states. Even lawyers appointed in the federal system receive
inadequate compensation to ensure competent defense. Indeed, no less than the Chief Justice has
noted the problem, requesting additional monies from Congress and asserting that “[a]dequate
pay for appointed counsel is important to ensure that a defendant's constitutional right to counsel
is fulfilled.”46
The Race Connection. In addition to the poverty problem, race persists as a disturbing and
complicating element in capital punishment. Of the 3,404 prisoners under sentence of death
nationwide at the end of 1998, 43% were black, a figure hugely disproportionate to the
percentage of African-Americans in the total population (Snell 1998).
Indeed, according to one
observer, “[r]ace is more likely to affect death sentencing than smoking affects the likelihood of
dying from heart disease. [Yet, t]he latter evidence has produced enormous changes in law and
societal practice, while racism in the death penalty has been largely ignored” (Dieter 1998).
The problem, of course, is nothing new – nor, is its recognition. Atticus Finch, the lawyer-hero
of Harper Lee’s 1960 novel, To Kill A Mockingbird, clearly recognized it in his defense of Tom
Robinson, accused, in a capital case, of raping a white girl (Lee 1960). Before that, in 1940, the
great novelist Richard Wright provided the tragic portrait of Bigger Thomas, sentenced to death
for the accidental killing of a white woman, while his intentional murder of a black woman went
largely ignored (Wright 1947/1993).
In real life, the so-called “Scottsboro Boys,” seven black
youth, were convicted in Alabama in 1931 for the crime of sexually assaulting two white girls.
The jury had, within its discretion, the authority to sentence the young men to as few as 10 years
imprisonment; it chose, instead, the death penalty (Powell v. Alabama, 287 U.S. 45 (1932)). Few
doubted that the key element in the jury’s decision was the race of the defendants and victims.
As Justice Marshall pointed out in his 1972 Furman concurrence:
[A] look at the bare statistics regarding executions is enough to betray
much of the discrimination. A total of 3,859 persons [were executed
between 1930 and 1972]. . . . Of the executions, 3,334 were for murder;
1,664 of the executed murderers were white and 1,630 were Negro; 455
persons, including 48 whites and 405 Negroes, were executed for rape. It
is immediately apparent that Negroes were executed far more often than
whites in proportion to their percentage of the population. Furman v.
Georgia, at 364 (Marshall, J., concurring) (Citations omitted).
In recent years, the statistical analyses have become far more sophisticated and, to many,
far more convincing. At the same time, the problem has remained peculiarly intractable. Take,
for example, the case of Warren McCleskey. In 1978, McCleskey a black Georgian, was
convicted of killing a white police officer during the course of a robbery, and he was sentenced
to death. As part of his habeas petition, McCleskey claimed that the Georgia capital sentencing
process was administered in a racially discriminatory manner. His case, which reached the
Supreme Court in 1987 (McCleskey v. Kemp, 481 U.S. 279 (1987)), centered around the “Baldus
Study,” a statistical examination of the death sentence in Georgia which demonstrated a disparity
in the imposition of capital punishment based on the race of the murder victim and, to a lesser
extent, the race of the defendant, with black defendants who killed white victims having the
greatest likelihood of receiving death.47 The study, McCleskey claimed, established that
application of the death penalty was irrational, arbitrary, capricious, and, thus, unconstitutional,
violating the Eighth Amendment and both the Equal Protection and Due Process Clauses of the
Fourteenth.
In a 5-4 decision rendered by Justice Powell, the High Court rejected his claim on
all counts.48
Beginning with McCleskey’s Equal Protection argument, Powell maintained that in order
to prevail, the defendant “must prove that the decisionmakers in his case acted with
discriminatory purpose” (McCleskey, at 292) (emphasis added). This, he had not done, relying
instead on the generalized findings of the “Baldus Study.” Although the Court has accepted
statistical patterns as proof of discrimination in other Equal Protection cases,
the nature of the capital sentencing decision, and the relationship of the
statistics to that decision, are fundamentally different from the
corresponding elements in the venire-selection or Title VII [of the Civil
Rights Act] cases. Most importantly, each particular decision to impose
the death penalty is made by a petit jury selected from a properly
constituted venire. Each jury is unique in its composition, and the
Constitution requires that its decision rest on consideration of innumerable
factors that vary according to the characteristics
of the individual defendant and the facts of the particular capital offense.
(McCleskey, at 295)
In short, for purposes of applying statistical findings to Equal Protection analyses, the criminal
justice system in general and the death penalty in particular are unique:
McCleskey's statistical proffer must be viewed in the context of his
challenge. [He] challenges decisions at the heart of the State's criminal
justice system. “One of society's most basic tasks is that of protecting the
lives of its citizens and one of the most basic ways in which it achieves the
task is through criminal laws against murder.” Implementation of these
laws necessarily requires discretionary judgments. Because discretion is
essential to the criminal justice process, we would demand exceptionally
clear proof before we would infer that the discretion has been abused.
(McCleskey, at 297) (citations omitted)
Nor was the Court sympathetic to McCleskey’s Eighth Amendment-Due Process claim.
There is, asserted Powell, “a constitutionally permissible range of discretion in imposing the
death penalty” – a range met by the State of Georgia and within which McCleskey’s sentence
was not disproportionate to his crime by any traditional indicia (McCleskey, at 305-306).
Writing in dissent, Justice Brennan admitted that under his view “the death penalty is in all
circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth
Amendments” (McCleskey, at 320, Brennan, J., dissenting).49 Nevertheless, he took particular
umbrage at the circumstances surrounding McCleskey’s sentence:
At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury
was likely to sentence him to die. A candid reply to this question would have been
disturbing. First, counsel would have to tell McCleskey that few of the details of the
crime or of McCleskey's past criminal conduct were more important than the fact that his
victim was white. Furthermore, counsel would feel bound to tell McCleskey that
defendants charged with killing white victims in Georgia are 4.3 times as likely to be
sentenced to death as defendants charged with killing blacks. In addition, frankness
would compel the disclosure that it was more likely than not that the race of McCleskey's
victim would determine whether he received a death sentence: 6 of every 11 defendants
convicted of killing a white person would not have received the death penalty if their
victims had been black, while, among defendants with aggravating and mitigating factors
comparable to McCleskey's, 20 of every 34 would not have been sentenced to die if their
victims had been black. Finally, the assessment would not be complete without the
information that cases involving black defendants and white victims are more likely to
result in a death sentence than cases featuring any other racial combination of defendant
and victim. The story could be told in a variety of ways, but McCleskey could not fail to
grasp its essential narrative line: there was a significant chance that race would play a
prominent role in determining if he lived or died. (McCleskey, at 321) (citations omitted)
Since McCleskey, statistics continue to demonstrate race disparity in capital sentencing. For
example, the most recent “Baldus Study,” an examination of the death penalty in Philadelphia,
found continuing patterns of “arbitrariness and discrimination in the administration of the death
penalty . . . [and] not [merely] confined to southern jurisdictions” (Baldus, et al 1998: 1738). At
the same time, since the retirements of Justices Brennan, Marshall, and Blackmun, there is no
longer a single Justice on the Supreme Court who is fundamentally opposed to the principle or
current application of the death penalty; while among core death penalty decision makers –
district attorneys in capital punishment states – almost 98% are white (Pokorak 1998).
And What of Innocence? Finally, regardless of race or economic status, with the growing
sophistication of DNA analysis, there has been an increasing trend – one which should give
pause to even the most die-hard advocates of the death penalty – toward the exoneration of death
row inmates. According to the Death Penalty Information Center, “since 1973, over 80 people
have been released from death row with evidence of their innocence” (Dieter 1997). Indeed, in
Illinois, the problem has become so acute – since the death penalty was reinstated there “23 years
ago, 13 death row inmates have been cleared of murder charges, compared to 12 who have been
put to death” (Claiborne 2000: 4) – that Governor George Ryan (R) has imposed a moratorium
on executions, pending an extensive study of a system deemed “‘fraught with errors’ and
‘broken’.”50 Throughout most of the nation, however, the increasing possibility of criminal
exoneration is being met with stiff resistance toward the goal of ever-quicker executions, as
states shorten and streamline death appeals and as Congress limits the scope of habeas,51 all
sanctioned by the Supreme Court.52
The End
In the end (literally), no matter which way we go, something must be done with our
remains. Here too, there is the law.
In many ways, the modern legal brush with the post-mortem began in the late-1800s
when artisans and entrepreneurs specializing in death – undertakers, embalmers, and funeral
directors – sought increased status and economic fortune via the state’s imprimatur, professional
licensing (Friedman 1973: 398-399). At the time,
[t]hey had many rivals. Doctors embalmed the dead. Clergymen controlled funerals.
Many undertakers were part-time funeral directors, who sold coffins and caskets as the
mainstay of their business. In the late 1800s, Hudson Samson, president of the Funeral
Directors National Association of the United States, prepared a model legislative act for
licensing embalmers. At the same time, Samson tried to uplift the artifacts of
professional funerals. (In 1889, he designed a “special eight poster, oval-decked funeral
car”; in 1989, a magnificent wooden drape hearse.) It was all part of one general
movement, to give tone and economic strength to the occupation, in short, to
“professionalize” these doctors of the dead. Samson wanted a law to regulate “the care
and burial of the dead the same as there is for the practice of medicine.” In 1894,
Virginia passed the first licensing law. . . . Thereafter, only registered embalmers could
practice the “science of embalming.” By 1900, some twenty-four states had passed
similar legislation. (Friedman 1973: 398)
Today, the provision of funeral services is governed largely by a tangled web of religious
ritual, individual state law, and some federal consumer protection law. At the state level, the
disposal of our “remains” is regulated in part by insurance law (overseeing the honest
disbursement of death benefits), by transportation law (licensing hearses), and by a variety of
zoning laws and cemetery oversight rules (regulating burial sites). The heart of most state
funeral law, however, remains in occupational licensing oversight. Maryland law is instructive.
Thus, in Maryland, a State Board of Morticians, appointed by the Governor with the advice and
consent of the Senate, sets standards and oversees the licensing, advertising, and inspection of
morticians, mortician apprentices, funeral directors, and funeral homes.53
Although funeral regulation is traditionally a function of state law, a substantial
proportion of the funeral industry traverses the route of interstate commerce and thus implicates
federal law as well. Of particular importance here is regulation and consumer protection
undertaken by the Federal Trade Commission (FTC).54 Hence, the FTC monitors and sanctions
unfair or deceptive acts or practices in selling or offering to sell funeral goods or funeral services
to the public (16 CFR 453.2). The so-called “Funeral Rule,” administered by the FTC, requires
“funeral providers to provide consumers with information regarding funeral products and
services and ensures consumers pay for only the products and services they want and need”
(FTC 1998).
While violators may be subject to litigation, a recently developed “Funeral Rule
Offenders Program” -- a venture generated jointly by the FTC and the National Funeral Directors
Association (NFDA) – offers funeral homes found to be in violation of the rule an opportunity to
make voluntary payments and receive training rather than face possible enforcement action by
the FTC and the state Attorneys General (FTC 1998).
LAW AND THE AFTER-LIFE: ANCIENT CONCERNS OF SUCCESSION
If at the death of a man who holds a lay `fee' of the Crown, a sheriff or royal official
produces royal letters patent of summons for a debt due to the Crown, it shall be lawful
for them to seize and list movable goods found in the lay `fee' of the dead man to the
value of the debt, as assessed by worthy men. Nothing shall be removed until the whole
debt is paid, when the residue shall be given over to the executors to carry out the dead
man’s will. If no debt is due to the Crown, all the movable goods shall be regarded as the
property of the dead man, except the reasonable shares of his wife and children.
If a free man dies intestate, his movable goods are to be distributed by his next-of-kin
and friends, under the supervision of the Church. The rights of his debtors are to be
preserved.
- Magna Carta, 121555
As the sections of Magna Carta quoted above suggest, law has long been concerned with
the orderly transfer of that which we can’t take with us -- our heirs and, more importantly, our
creditors should receive their fair shares of our lives’ work under a watchful legal eye. This
section briefly reviews the ancient lineage of law in the transfer of property after death.
Although the law has ever been involved in succession, the process of transferring a dead
person’s property or rights, its involvement has not always been so legalistic or formal as it is
today. According to Adam Hirsch (1996: 1060),
[i]n colonial times, settlers were content to give effect to nuncupative
(oral) wills or even to depositions by friends or family concerning the
decedent's dispositive preferences as expressed to them casually. The
court then ordered distribution “according to the minde (sic) of the
deceased.”
While such informality may have worked in a small-scale agricultural economy, “flexibility and
individualized handling of estates,” according to Lawrence Friedman (1973: 219), “was a luxury
that a mass society, with mass ownership of wealth, could not afford.” Thus, began the birth of a
complex and sometimes daunting system of probate law.
Wills, individuals’ declarations of how they want their property distributed after their
deaths, are the basic form of succession. In general, wills are characterized by three customary
requirements: they must be written, they must be signed, and they must be attested to -- that is,
authenticated by witnesses. Of the three, the most formal -- some would say, archaically so -and the most likely to act as an impediment, is the attestation requirement. All states currently
dictate that between two and three witnesses formally attest to the validity of a will in front of a
third party, often a lawyer, an accountant, or notary public. At common law, the idea was to
have several disinterested parties present to guard “the testator [will maker] against various
nefarious acts, such as fraud or undue influence”(Mann 1994: 1042). Today, however, as Bruce
Mann (1994: 1042) notes, “witnesses tend to be either family members, who are well-placed to
commit the acts they are supposed to prevent, or comparative strangers in a lawyer's office or
bank who sign when and where they are told and hardly see themselves as the testator's
sentinels.”
This complex law of succession may sometimes lead to very absurd results. Thus, in all
states, if a will is formally typed, failure to abide by proper attestation will most likely invalidate
the will in the eyes of the court. At the same time, a number of states do recognize so-called
holographic wills, wills that are handwritten and signed with no witnesses. This leads, in many
states to a kind of “schizophrenic” outcome in which
either a will must be thoroughly formalized by virtue of witnesses and so
on, or it must be thoroughly informalized by virtue of a
statement
wholly in handwriting. A will that is neither formal nor informal, but
rather semi-formal--such as an estate plan typed and signed (but not
witnessed) on a pre-printed will form--be it even an official statutory will
form published with the state's imprimatur--is of no legal effect
whatsoever. (Hirsch 1996: 1071)
Regardless of the form of will, or, no will at all, when an individual dies, his or her estate
is subject to probate. Probate is a court proceeding in which debts are settled, taxes paid, and
whatever is left transferred to the deceased’s legal heirs. Like the rules surrounding wills
themselves, probate varies according to individual state law. Thus, in some states, if an estate is
relatively small and the will uncontested, the probate procedure may be quickly and fairly easily
consummated; other states retain more formalized and complicated probate procedures.
In general, probate involves four basic steps. First, the court will appoint someone to inventory
and distribute the estate. Where the departed has left a valid will (in legal terms, where she has
died testate), this person will be the executor named in the will. Where there is no will (where
the deceased is intestate), the court itself will name an administrator.
The executor or administrator is then responsible for collecting, itemizing and appraising
all of the assets that are subject to probate. He or she then must pay outstanding debts and taxes,
although most states permit a portion of the estate to be set-aside for survivors, out of the long
reach of creditors. And, finally, what is left over is distributed to the estate’s heirs. Where there
is no will, state law determines the legal heirs, most commonly, dividing the estate between the
surviving spouse and the decedent’s closest blood relatives.56
Although probate is the most common form of succession, it is not the only form.
Property that was placed in a living trust57 prior to death or property held in joint tenancy58 may
pass to beneficiaries without court supervision. So too, may life insurance and retirement
account benefits (Hames and Ekern 1998: 212 ).
Of course, as the foregoing suggests, not only are death and taxes inevitable, they are
inextricably intertwined. Indeed, “[o]ne of the oldest and most common forms of taxation is the
taxation of property held by an individual at the time of his death.”59 Unlike the transfer of
property to heirs which is governed by individual state law, the transfer of property to
government (in other words, taxes) is a federal concern as well. This was not always the case.
Early in American history, death taxes were primarily levied by state governments, with federal
death taxes imposed only sporadically in times of war or threatened war.
Thus, for example,
“[t]he first Federal death tax was imposed from 1797 until 1802 as a stamp tax on inventories of
deceased persons, receipts of legacies, shares of personal estate, probates of wills, and letters of
administration to pay for the development of strong naval forces felt necessary because of
strained trade relations with France” (Joint Committee on Taxation 1998). Thereafter, a sixty
year hiatus ensued until a federal inheritance tax was imposed to offset the costs of the Civil
War.
In 1898, the federal government imposed its first estate tax to finance the SpanishAmerican War. Estate taxes as a permanent feature of the federal revenue system did not take
hold until 1916 with the onset of World War I (Joint Committee on Taxation 1998).
The current Federal Estate Tax (26 U.S.C. §2001) is a levy on decedents’ property before
transfers to debtors or heirs take place. In addition, many states impose such taxes. Although
more sophisticated estates may transfer many assets prior to death in the form of gifts, the
Federal Gift Tax law (26 U.S.C. §2501) is “generally designed to prevent complete tax
avoidance by this route” (26 U.S.C. §2501, LII, “Estate and Gift Tax”). Since 1976, federal
estate and gift tax law has been unified, with a single graduated rate schedule applicable to
transfers.60 Recently, federal death tax law has come under increasing criticism (e.g., Joint
Economic Committee 1998). Numerous bills were introduced during the 106th Congress to
reduce or eliminate the Estate Tax,61 though none currently has passed into law.
CONCLUSION
In this chapter, we explored law’s role at the end of life, from old age to death to burial to
succession, the temporal parallel to celestial afterlife. The inevitability of death is well attended
by the inevitability of law.
In many ways, law’s ordering function is clearest here at the end. We structure law to
make our grandparents’, parents’, and our own last years as neat and carefree as possible. We
place law in the role of bulwark against the moral chaos we fear would arise should some
(maybe many) of us seek to determine our own ends – or those of our loved ones. At the same
time, we let law end the lives of those few whom we have determined most hideously breached
society’s commandments. And we use law, after all is said and done, to transfer, in an orderly
fashion, that which we “can’t take with us.”
Yet, as the foregoing suggests, it is not without struggle that we give way at the end to the
ordering proclivities of law. From age discrimination litigation to “right to die” claims, to the
often long struggles of death row inmates trying to avoid execution, to the ongoing battle aimed
at ending inheritance taxes, individuals employ law’s liberty motif to fight its ordering devices.
The inherent battle, it seems, is inevitable – right down to the bitter end.
. According to the Administration on Aging, Department of Health and Human Services: “The older
population-persons 65 years or older-numbered 34.1 million in 1997. They represented
12.7% of the U.S. population, about one in every eight Americans. The number of older Americans increased by 2.8
million or 9.1% since 1990, compared to an increase of 7.0% for the under-65population. . . . Since 1900, the
percentage of Americans 65+ has more than tripled (4.1% in 1900 to 12.7% in1997), and the number has increased
eleven times (from 3.1 million to 34.1 million). The older population itself is getting older. In 1997 the 65-74 age
1
group (18.5 million) was eight times larger than in 1900, but the 75-84 group (11.7million) was 16 times larger and
the 85+ group(3.9 million) was 31 times larger. . . . [T]he older population will burgeon between the years 2010
and2030 when the '"baby boom" generation reaches age 65.
By 2030, there will be about 70 million older persons, more than twice their number in 1997. People 65+ are
projected to represent 13% of population in the year 2000 but will be 20% by 2030.” “Profile of Older Americans:
1998,” http://www.aoa.dhhs.gov/aoa/stats/profile/#table1 (date visited: October 26, 1999).
2
. The Court had addressed the question of whether age distinctions violate the equal protection requirements of the
14th Amendment on one other occasion, reaching a similar conclusion. Vance v. Bradley, 440 U. S. 93 (1979)
(upholding constitutionality of State Department regulation mandating retirement of Foreign Service employees at
age 60)..
3
. At issue here was whether Congress, in extending age discrimination protection to state employees, had violated
the states’ immunity from prosecution under the 11th Amendment. The 5-4 majority declared that Congress had
overstepped its authority and restated its understanding that age is not a suspect classification.
. 49 Stats. 623. For a thorough account of the Committee’s actions and the legislative history of the Social
Security Act, see Witte (1962). Also see Weaver (1982); Altmeyer (1968); Nash, et al (1988).
4
5
. Helvering v. Davis, 301 US 619 (1937) represented a frontal assault on the general policy; while Steward
Machine Company v. Davis, 301 US 548 (1937) challenged the taxation and employer contribution scheme.
6
. The depression era Townsend Movement in California, led by Dr. Francis E. Townsend, was actually the first
effort to organize old people for the purpose of political action. The primary thrust of the movement was that every
citizen should, at age 60, get $200 per month from the government with the requirement that it be spent, thereby
both providing for old age and to stimulate the economy. Older folks would also be taken care of, and they would
immediately put their stipends into circulation which would serve as an economic stimulus (Holtzman 1963). In
addition, Abraham Epstein organized the American Association for Old Age Security in 1927 (which became the
Association for Social Security in 1933) for the purpose of promoting old-age assistance laws (e.g., Lubove 1968).
. See http://www.aarp.org for a full analysis of the organization’s lobbying and litigation efforts on behalf of senior
citizens. (Visited January 13, 2000).
7
8
. NY Exec. Law, sec. 296 (1958); Laws Cal. 1961, ch. 1623.
9
. 79 Stat. 218, July 14, 1965.
0
10. 81 Stat. 602, December 15, 1967; 29 USC 621. The ADEA covered all individuals between the ages of 40 and
65, and was amended in 1978 to increase the upper age to 70 (92 Stat. 189, April 6, 1978).
1
1. There have been a number of such cases that have worked their way through the federal courts under ADEA.
Waggoner v. City of Garland, 987 F2d 1160 (5th Cir. 1993) (finding supervisor’s stray remarks insufficient to prove
age discrimination in employment) is an often-cited and pivotal case. Also see Bolton v. Scrivner, Inc., 36 F.3d 939,
944-45 (10th Cir. 1994), cert. denied, 115 S. Ct. 1104 (1995).
2
12. Medicare and Medicaid were parts of the Health Insurance for the Aged Act (79 Stat. 290, July 20, 1965.
3
13. For an extensive summary of both the Medicare and Medicaid programs, see Waid (1998).
4
14. Thus, a person who is eligible for Medicaid in one State might not be eligible in another State; and the services
provided by one State may differ considerably in amount, duration, or scope from services provided in a similar or
neighboring State. In addition, Medicaid eligibility and/or services within a State can change during the year.
5
15. See Goldberg v. Kelly, 405 U.S. 134 (1972) (holding that states cannot terminate benefits without a formal
hearing on the recipient’s eligibility); Shapiro v. Thompson, 394 U.S. 618 (1969) (invalidating residency
requirements for receipt of benefits in light of the Constitutional “right to travel”).
6
16. It is estimated that by the year 2000 the average life expectancy will rise to 80 years of age. Indeed, if medical
research into such technologies as stem cell replacement continue to progress, the Census Bureau predicts that
within a century, more than 5,000,000 Americans will be living past 100! (Hall 2000).
7
17. Agriculture is heavily regulated and subsidized by law, both state and federal. Law covers a wide variety of
loan programs, production assistance, disaster aid, crop insurance, pricing, trade agreements, and special labor
regulations, to name a few. See, for more information, U.S., House of Representatives, Committee on Agriculture,
http://agriculture.house.gov/ (date visited: October 26, 1999); U.S., Senate, Committee on Agriculture, Nutrition,
and Forestry, http://www.senate.gov/~agriculture/ (date visited: October 26, 1999); and Farm Services
Administration, U.S. Department of Agriculture, http://www.fsa.usda.gov/pas/default.asp (date visited: October 26,
1999).
8
18. See, U.S. Food and Drug Administration, Center for Food Safety and Applied Nutrition,
http://vm.cfsan.fda.gov/list.html (date visited: October 26, 1999); and U.S.,”Food Safety” cite,
http://www.foodsafety.gov/ (date visited: October 26, 1999).
9
19. See, for example, U.S. Centers for Disease Control and Prevention, http://www.cdc.gov/ (date visited: October
26, 1999); U.S. Department of Health and Human Services, Health Resources and Services Administration,
http://www.hrsa.dhhs.gov/ (date visited: October 26, 1999); and National Institutes of Health, http://www.nih.gov/
(date visited: October 26, 1999).
20. Yes, there’s even a President’s Council on Physical Fitness and Sports. See:
http://www.indiana.edu/~preschal/council.html (date visited: October 26, 1999).
0
1
21. See for example, the U.S. Consumer Product Safety Commission, http://www.cpsc.gov/ (date visited: October
26, 1999).
2
2. See, U.S. Department of Labor, Occupational Health and Safety Administration, http://www.osha.gov/ (date
visited: October 26, 1999).
3
23. Black's Law Dictionary (5th ed. 1979), p. 361, cited in Banks (1995).
4
24. 381 U.S. 479 (1965). For a discussion of Griswold, see Chapter 5.
5
25. 410 U.S. 113 (1973). For a discussion of Roe see Chapter 5.
26. Notably, the withdrawal of the life-sustaining apparatus did not bring on Karen’s death. She persisted in her
vegetative coma for a full nine years before her death in 1985. See e.g., Malcolm (1985: 22).
6
7
27. From 1976 through 1988, at least 54 such cases were reported, marking a substantial increase over previous
years. 760 S.W.2d at 412, n.4, cited in Cruzan v. Missouri Department of Health, 497 U.S. 261, 269 (1989).
8
28. App. to Pet. for Cert. A99, cited in Cruzan, 267.
29. The 5-4 decision included a majority consisting of the Chief Justice and Justices White, O’Connor, Scalia, and
Kennedy (O’Connor and Scalia wrote concurrences). The dissent, led by Justice Brennan, included Justices
Marshall, Blackmun and Stevens, with Stevens writing separately.
9
30. “Kevorkian’s Patients,” The Kevorkian File, http://www.rights.org/deathnet/Kfiles_details.html (Date visited:
January 5, 2000).
0
1
31. On March 14, 1998, Kevorkian assisted in his 100th suicide. See Frontline (1998).
2
32. On April 13, 1999, Kevorkian was convicted of second-degree murder and delivery of a controlled substance
in the death of Thomas Youk. Dr. Kevorkian was sentenced to 10-25 years in prison for delivery a lethal injection
to Youk. Kevorkian had videotaped this particular death which was aired on the CBS show, 60 Minutes, the
previous November. Prior to his conviction, Kevorkian had been tried and acquitted several times by Michigan
juries and had been the impetus for two state laws outlawing assisted suicide, the first of which was declared
unconstitutional by the Michigan Supreme Court. For a complete chronology of Kevorkian’s activities and the legal
responses to those exploits, see Frontline (1998). See also, Lessenberry (1994).
3
3. Or. Rev. Stat.127.800 et seq. Although some states, like Maine, are considering measures similar to that of
Oregon, the trend in recent years has been in the opposite direction, with more states acting to explicitly ban assisted
suicide. See: “Legal Developments: Recent Legislation,” Choice in Dying,
http://www.choices.org/legal.htm#Legislation (Date visited: January 6, 2000.)
34. Oregon Dept. of Human Resources, Health Division, “Oregon's Death with Dignity Act,”
http://www.ohd.hr.state.or.us/cdpe/chs/pas/pas.htm (Date visited: January 6, 2000).
4
35. Oregon Dept. of Human Resources, Health Division, Annual Report: “Oregon’s Death with Dignity Act: The
First Year's Experience,”
http://www.ohd.hr.state.or.us/cdpe/chs/pas/arresult.htm (Date visited: January 6, 2000)>
5
6
36. For a discussion, see below.
7
37. For a discussion, see below.
8
38. Chief Justice Burger and Justices White and Rehnquist would have upheld, in addition, the Louisiana and
North Carolina Laws. See, Roberts v. Louisiana, 428 U.S. 325, 337ff (1976), (White, J., dissenting). Justices
Brennan and Marshall continued to maintain that the death penalty is always unconstitutional. See, Gregg, Brennan,
J., dissenting at 227ff; Marshall, J., dissenting at 231ff.
9
39. Not a single member of the Court today views the death penalty as unconstitutional per se.
42. ACLU, “The Poverty Connection,” ACLU Execution Watch, http://www.aclu.org/executionwatch.html (Date
visited: January 3, 2000)
2
3
43. See for example, Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas
v. California, 372 U.S. 535 (1963).
4
4. The term was quoted and accepted by the ABA in a 1997 report (ABA 1997: 224).
45. In spite of all the negligence, “both the Alabama Court of Criminal Appeals, Haney v. State, 603 So. 2d 368
(Ala. Crim. App. 1991), and the Alabama Supreme Court, Ex parte Haney, 603 So. 2d 412 (Ala. 1992), upheld the
conviction and death sentence in the case” (Bright 1994: 1836, fn2).
5
46. Chief Justice William H. Rehnquist, “Panel Attorney Compensation,” The 1999 Year-End Report on the
Federal Judiciary, accessed at: http://www.uscourts.gov/ttb/jan00ttb/jan2000.html (Date retrieved: May 5, 2000).
6
7
47. See: Baldus, Pulaski, Woodworth, and Kyle 1980; Baldus, Pulaski, Woodworth 1983; Baldus, Woodworth
and Pulaski 1985; Baldus, Woodworth, and Pulaski 1986.
8
48. Justice Powell was joined by Chief Justice Rehnquist and by Justices White, O’Connor, and Scalia.
9
49. Justice Brennan was joined in full by Justice Marshall and in part by Justices Blackmun and Stevens.
0
50. Dennis Culloton, Press Secretary to Governor Ryan, quoted in Claiborne (2000: 1).
1
51. See Chapter 4.
2
52. See for example, Herrera v.Collins, 506 U.S. 390 (1993) (holding that a claim of actual innocence does not
entitle a defendant to federal habeas relief where he has been afforded a fair trial and appeals) and Felker v. Turpin,
518 U.S. 651 (1996) (upholding congressional restrictions on habeas passed as part of the Antiterrorism and
Effective Death Penalty Act of 1996.)
3
53. See generally, Md. HEALTH OCCUPATIONS Code Ann. § 7-101ff (1999).
54. The FTC attempts to be solicitous of state prerogatives here, exempting any state that “affords an overall level
of protection to consumers which is as great as, or greater than, the
protection afforded by [the FTC rule].” 16 CFR 453.9.
4
5
5. Magna Carta, Chapters 26 and 27 (1215 A.D.). The University of Oklahoma Law Center,
http://www.law.ou.edu//hist/magna.html. (Date visited: August 4, 1998).
6
56. Generally, this would mean that the spouse gets some portion of the estate, while the children get the
remainder. However, if there are no children, the spouse may have to split the estate with her dearly departed’s
parents or siblings.
57. “A Trust is a creature of the law in which one party - the Trustee - has legal ownership of any form of property
that has been transferred to him/her or "it" (e.g., a bank) by the person establishing the Trust. That "establishing"
person is called the Grantor (or Settlor, or Trustor). The property is known as the Trust "principal," or "corpus."
These Trust assets are invested and/or managed for the benefit of one or more beneficiaries. Sometimes, the Grantor
also wears the hats of Trustee and beneficiary. Generally, however, if the Grantor is the Trustee, he/she cannot be
the only beneficiary. . . . [A] "living" [trust is one] established during the Grantor's lifetime (Palermo).
7
8
58. Joint tenancy is the legal term for joint ownership of property. For example, most husbands and wives jointly
hold title to the couple’s house.
59. Cornell Law School, Legal Information Institute (LLI), “Estate and Gift Tax: an Overview,”
http://www.law.cornell.edu/topics/estate_gift_tax.html (Date Visited: September 30, 1999).
9
60. “A gift tax is imposed on lifetime transfers and an estate tax is imposed on transfers at death. Since1976, the
gift tax and the estate tax have been unified so that a single graduated rate schedule applies to cumulative taxable
transfers made by a taxpayer during his or her lifetime and at death. Under this rate schedule, the unified estate and
gift tax rates begin at 18 percent on the first $10,000 in cumulative taxable transfers and reach 55 percent on
cumulative taxable transfers over $3 million. In addition, a 5-percent surtax is imposed upon cumulative taxable
transfers between $10 million and the amount necessary to phase out the benefits of the graduated rates and the
unified credit. (Joint Committee on Taxation 1998)
0
1
61. See for example, the Estate and Gift Tax Rate Reduction Act, H.R.8 and the Family Heritage Preservation Act,
H.R.86.