Harbison v. Bell
Issues
1. Does a defendant who is appointed a federally funded lawyer for a habeas corpus claim also have a right to use the federally funded lawyer for representation in state clemency hearings?
2. Must a defendant wait until the final judgment of a state court and obtain a certificate of appealability to appeal an order denying assistance of federally funded counsel for a clemency hearing?
The Terrorist Death Penalty Enhancement Act of 2005, codified at 18 U.S.C. § 3599, provides indigent defendants in death penalty cases the assistance of federally funded lawyers. Edward Jerome Harbison was convicted of first degree murder by a Tennessee jury and sentenced to death. Harbison requested the retention of his federally provided lawyer for his state clemency proceedings. This request was denied, as the United States Court of Appeals for the Sixth Circuit found that § 3599 does not apply to strictly state proceedings. Harbison appeals this ruling, arguing that the language of § 3599 indicates it applies to all death penalty proceedings, including state clemency proceedings. Although the respondent, Warden Ricky Bell, takes no position on this issue, amicus United States argues that Congress intended § 3599 to apply exclusively to federal proceedings, and that the legislative history supports this interpretation. With its decision in this case, the Supreme Court may resolve a split of opinion among the federal circuit courts regarding the scope of § 3599.
Questions as Framed for the Court by the Parties
Every jurisdiction that authorizes the death penalty provides for clemency, which is of vital importance in assuring that the death penalty is carried out justly. But, in this case the District Court held Mr. Harbison's federally-funded lawyers could not present, on his behalf, a clemency request to Tennessee's governor. The denial of clemency counsel contravenes basic principles of justice. As Chief Justice Rehnquist noted in Herrera v. Collins.
Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted. Indeed, the clemency power exists because "the administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt." Thus, executive clemency is the "fail safe' in our criminal justice system." A system which includes capital punishment but does not provide a meaningful opportunity for executive clemency is "totally alien to our notions of criminal justice."
Yet, the lower courts arbitrarily denied Mr. Harbison's federally-funded habeas counsel permission to represent him in state clemency proceedings after the State had denied him counsel for that purpose. The District Court and the Court of Appeals for the Sixth Circuit not only defied Congress' explicit directions to provide clemency counsel for the condemned, but denied Mr. Harbison a meaningful opportunity to present compelling facts mitigating his guilt and the punishment of death to the only person presently able to consider them, the Governor of the State of Tennessee.
Equally troubling, the Sixth Circuit barred Harbison from appealing the denial of clemency counsel by refusing to grant a certificate of appealability on the issue. In order to harmonize the law of the circuits and to decide an important issue regarding the appeals court's jurisdiction, this Court should resolve the following questions:
1. Does 18 U.S.C. §3599(a)(2) and (e) (recodifying verbatim former 21 U.S.C.§848(q) (4)(B)and (q) (8)), permit federally-funded habeas counsel to represent a condemned inmate in state clemency proceedings when the state has denied state-funded counsel for that purpose?
2. Is a certificate of appealability required to appeal an order denying a request for federally-funded counsel under 18 U.S.C. §3599(a)(2) and (e)?
In 1983, a Tennessee jury convicted Petitioner Edward Jerome Harbison of first-degree murder, second-degree burglary, and grand larceny, and sentenced him to death. See Harbison v. Bell,503 F.3d 566, 567 (6th Cir.