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April 1, 2009

SCOTUS rules for defendants (and their lawyers) in clemency case

As detailed in this SCOTUSblog post, the Supreme Court today, "over two Justices’ partial dissents, ruled that a 2005 federal law providing free defense lawyers for individuals facing a possible death sentence allows such a lawyer to seek clemency for the client from state officials."  Here are the particulars with a link to the opion that to SCOTUSblog:

The Court has released the opinion in Harbison v. Bell (07-8521), on federally funded counsel in state clemency proceedings. The decision below, which held for the state, is reversed in a 7-2 opinion by Justice Stevens, available here. The Chief Justice and Justice Thomas filed concurring opinions and Justice Scalia filed an opinion concurring in part and dissenting in part, joined by Justice Alito.

April 1, 2009 at 10:31 AM | Permalink


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The Supreme Court decided Harbison v. Bell this morning. 5-2-2. No surprises.Is there any good reason why the taxpayers of the country as a whole should pay for a lawyer to make a clemency plea to a state governor on... [Read More]

Tracked on Apr 1, 2009 12:36:01 PM


Scalia gets the better of the argument from the statutory interpretation standpoint. This case may cause some mischief in the future. Will federal courts start getting involved in clemency? Probably not (immediately) with respect to substantive issues, but with respect to the federal defender's ability to do discovery-like things, it may happen.

Posted by: federalist | Apr 1, 2009 11:33:34 AM

This was a state death penalty case. What do federal public defenders have to do with it? Or did I misread your comment?

Posted by: anon | Apr 1, 2009 12:26:24 PM

I stand corrected. It was a federal public defender in a habeas proceeding. I still don't see the "mischief" of providing indigent defendants counsel, but I was mistaken above.

Posted by: anon | Apr 1, 2009 12:35:57 PM

The issue, anon, is not allowing federal capital defenders to do clemency, but whether their involvement will be a hook for federal judges to worm their way into the state clemency process. Will they impose discovery? Will they ask for delays in executions so that they can get their clemency petitions together?

Posted by: federalist | Apr 1, 2009 12:42:30 PM

federalist, I assume that defense lawyers will do all the things you suggest in an effort to delay an execution. So what? First, federal district court judges are hardly a bunch of softees. Second, since the clemency petition will typically mirror the habeas petition (as Stevens notes), the delays needn't be lenghty. For example, if you look at the rules governing clemency petitions in federal death penalty cases, you'll see that the deadlines are relatively short. But you are probably right that lawyers will try. I find it hard to get too worked up about that if the state is going to kill someone, even someone who deserves to die.

Posted by: anon | Apr 1, 2009 1:16:25 PM

Anon, other than ensuring minimal due process (i.e., the decision is not based on the flipping of a coin), federal courts aren't supposed to be involved, at all, in state clemency.

Also, on what basis do you think that a second layer of delay (on top of federal habeas) should be available to state capital defendants?

Posted by: federalist | Apr 1, 2009 1:25:34 PM

How is the "issue" whether there "will be a hook for federal judges to worm their way into the state clemency process"? That's obviously not the issue in the case the Supreme Court decided. And I don't see why federal judges would suddenly find themselves involved in state clemency proceedings merely because federal counsel is representing the petitioner.

Posted by: d | Apr 1, 2009 1:30:21 PM

I am laying out the possibility that having the federal capital defender involved in clemency can be used to get federal courts involved in the clemency process. I would like to think that will not happen. I am not so sure.

Posted by: federalist | Apr 1, 2009 1:54:16 PM


It's probably my fault for not being very articulate, but I agree with you about the very limited role of the federal judiciary in a state clemency proceeding. Indeed, that was my point. A district court would presumably have to appoint a federal public defender to represent the petitioner in the state clemency proceeding, but beyond that would have nothing to do with the clemency case and certainly wouldn't have any occasion "to worm their way into the state clemency process," as you put it. On what basis? Whatever process the petitioner is due is entirely a matter of state law, which would not get a searching review in federal court (see Woodard). So, I think your "worry" is far-fetched.

Moreover, I am not advocating "a second layer of delay." Today's decision is not going to result in any sort of delay that does not already exist. Executive clemency has always been a part of the post-conviction process. Further, the large majority of state capital defendants who wanted to seek clemency have had pro bono counsel anyway. Perhaps this will encourage more defendants to seek clemency, but trust me, these cases will be handled with dispatch.

Posted by: anon | Apr 1, 2009 3:02:03 PM

I am not so sure. Just yesterday, the Sixth Circuit issued a stay of execution to a murderer claiming innocence. This, despite the fact that he has had his full-blown habeas corpus appeal. The reason for the stay--he asserts innocence and has pointed to some items that have not been DNA tested. Sounds reasonable, until you realize that the cops found victim's blood on his t-shirt in his apartment and a host of other incriminating evidence.

Now AEDPA has some very strict limits on secondary habeas appeals based on innocence claims. But the court has seen fit to evade such limitations by pointing to the pendency of a Supreme Court case on the right to DNA testing. So is that how it works--toss up an incredibly weak DNA argument and get a stay?

What result if the federal capital defender files a motion in federal court stating that he doesn't have enough time to prepare for a state clemency hearing due to workload. I guarantee you that there are District Court Judges who absolute would grant a stay on this basis. What result if some prison guard doesn't want to talk to the capital defender and the capital defender decides to subpoena him in federal court?

Posted by: federalist | Apr 1, 2009 3:43:26 PM

I'm not aware of a state clemency process that permits discovery of any kind, though if I'm wrong someone will correct me. I just have a difference sense of this, I suppose. I find it hard to image that a federal judge would be very sympathetic to the work load argument, but they could also just reassign the clemency matter to someone else.

Posted by: anon | Apr 1, 2009 4:34:30 PM

I'm not either, anon. But I'm also not aware of a good reason why the Sixth Circuit should have stayed Brett Hartman's execution either, but it did.

Posted by: federalist | Apr 1, 2009 4:40:11 PM

How could Scalia "get[] the better of the statutory interpretation argument" if even he admits the statute doesn't actually say what the government wants it to say - that counsel is limited to federal court proceedings?

This case has nothing to do with federal courts. It's just a fee-shifting case - who pays for the defendant's lawyer in STATE clemency proceedings. Federalists fears so terrified the state of TN that it officially yawned at the whole thing and declared it didn't give a rat's behind who paid for the defendant's lawyer.

Posted by: Anon | Apr 1, 2009 6:28:39 PM

What a joy to see that Supremacy Claus has not yet weighed in . . .

Posted by: t | Apr 1, 2009 6:31:57 PM

Read his opinion . . . . The majority crafted extra-statutory (i.e., non-text based) limitations on the fee-shifting (as you call it) provision.

I don't really care either--except that I would bet some money that federal courts will use this as a hook to stay executions.

Posted by: federalist | Apr 1, 2009 6:39:28 PM

"This case may cause some mischief in the future." So does allowing people to vote and letting them have access to the courts to petition for redresses. Liberty causes a great deal of mischief, but it's a good mischief. The Taliban has a great deal of mischief in its system too but would likely have far less if it allowed for fair trials and hearings to settle disputes.

Posted by: anontopus | Apr 1, 2009 8:09:28 PM

So the majority applied the plain language of the statute and then posited that the language would not lead to the so-called "absurd results" set forth by the government. Scalia was so concerned about those same results he would ignore the plain meaning of the statute. Sounds to me like Scalia got beat at his own game.

This, by the way, is further evidence that Scalia is a fraud. He's Mr. Textualist until the plain text gets him to a result with which he disagrees for ideological reasons. Then he throws the plain text out the window and comes up with a different way to get where he wants to go. Thomas, for better or (usually) worse, is at least consistent.

Posted by: Anon | Apr 1, 2009 8:14:40 PM

I don't think you can call Scalia a fraud on this basis. There are really no good solutions to the problem. Sometimes you get goofy statutes and you have to deal with them as best as you can.

Posted by: federalist | Apr 2, 2009 9:32:16 AM

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