Supreme Court Allows Counsel for Indigent Defendant to Seek Clemency

By Jeralyn, Section Supreme Court
Posted on Wed Apr 01, 2009 at 10:21:09 AM EST
Tags: indigent defense (all tags)

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Via ScotusBlog:

In the final ruling of the day, the Court, 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. Justice John Paul Stevens wrote for the majority in Harbison v. Bell (07-8521). Justice Scalia filed a partial dissent, joined by Justice Samuel A. Alito, Jr.

The opinion is here (pdf.)[More...]

Congress’ decision to furnish counsel for state clemency proceedings reflects both clemency’s role as the “ ‘fail safe’ of our criminal justice system,” Herrera v. Collins, 506 U. S. 390, 415, and the fact that federal habeas counsel are well positioned to represent their clients in clemency proceedings.

....Harbison’s case underscores why it is “entirely plausible that Congress did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.” Hain v. Mullin, 436 F. 3d 1168 (CA10 2006) (en banc). In authorizing federally funded counsel to represent their state clients in clemency proceedings, Congress ensured that no prisoner would be put to death without meaningful access to the “‘fail-safe’” of our justice system.

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Supreme Court Allows Counsel for Indigent Defendant to Seek Clemency | 11 comments (11 topical)

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the most noteworthy thing about this case (5.00 / 1) (#2)
by Bemused on Wed Apr 01, 2009 at 12:52:10 PM EST

is that it may be the first case ever in which Thomas took the most extreme position in favor of defendants.

He even disagress with the majority that § 3559 is limited to state proceedings in some respects.

In the real world, the biggest effect will be that federally appointed lawyers get paid for the work they do pursuing state clemency. A lot of this is done pro bono now. I do imagine that in some cases more effort may be applied to state clemency because people have to eat and the ability to work for free is limited.

I'm not so sure about that (5.00 / 1) (#5)
by txpublicdefender on Wed Apr 01, 2009 at 07:27:20 PM EST

I actually don't think that's correct. Thomas has taken pretty extreme positions in favor of criminal defendants before. Off the top of my head, I can remember him authoring strong opinions in favor of defendants in the context of forfeiture and the right against self-incrimination. Unlike pretty much every other Supreme (and just about every other judge, period), he believes that the historic limitation on the right against self-incrimination to "testimonial" evidence is wrong, and that there is nothing in the text of the Constitution to support it. He does not believe a defendant should ever be forced to "give evidence against himself," which would include all sorts of things that are taken for granted today, including being forced to submit samples for DNA testing.


And, for all you knee-jerk Thomas haters, (5.00 / 1) (#7)
by Peter G on Wed Apr 01, 2009 at 09:11:17 PM EST

his concurring opinion, which as TexPD says is stronger for the defendant than the Stevens majority, disagrees with Scalia's dissent (joined by Alito). I most often disagree with Thomas, but he is not a follower or clone of Scalia. (Nor is Scalia always anti-defendant, either. He is #1 on enforcing the Confrontation Clause, for example.) Thomas has his own strong opinions, sticks to them, and expresses them.


Well (none / 0) (#8)
by Steve M on Wed Apr 01, 2009 at 10:33:49 PM EST

I'm far from a knee-jerk Thomas hater, but I thought his opinion in this case was pretty silly. Sometimes he has a way of taking a point way way too far.


: True enough about Thomas's style, (5.00 / 1) (#10)
by Peter G on Thu Apr 02, 2009 at 09:07:52 AM EST

but the point here is that the Court's task was to interpret and apply a very badly-drafted federal statute. The justices were not deciding on a vague constitutional basis (such as "due process" or "the assistance of counsel" or "cruel and unsual") what rights these death-row habeas petitioners should have, but rather what services Congress said in a particular statute it would pay public defenders (or court-appointed private counsel) to provide. The answer to that question should have been clear and simple (one way or the other), if the statute was competently drafted, but as the various groups of justices' three different opinions show, it wasn't. So for the prisoners' sake, I'm glad it came out as it did.

Lord help me. (none / 0) (#6)
by Romberry on Wed Apr 01, 2009 at 08:55:03 PM EST

If that be true (Thomas believing that the right against self incrimination is not limited to testimonial evidence), I agree with Clarence Thomas.

Gotta run...pigs now flying past my window.


I didn't mean (none / 0) (#9)
by Bemused on Thu Apr 02, 2009 at 06:56:43 AM EST

to imply this is his first "pro-defendant" opinion, or first that would be among the "extreme" psotions (on the court) on an issue. I just can't recall where he wrote a dissent or concurrence joined by no other Justice that would grant more to defendants than any of the others were willing to do. I'm not sure about that which is why I phrased it that way but do you know of a case where he alone stood on the pro-defendant extreme.

As for Scalia, in criinal law, he appears not to be results-oriented. He is an ideologue and if following his ideology to its logical end favors defendants in a particualr case that's what he writes. You can disagree with his principles but he has them and he sticks to them.


: Right for sure on the ideologue part (none / 0) (#11)
by Romberry on Thu Apr 02, 2009 at 08:33:21 PM EST

Wasn't it Scalia who opined that actual innocence is no bar to the death penalty, that the only thing that counted was that due process had been afforded and evidence showing actual innocence once due process was complete was simply not reason enough to halt the machinery of death?

dont (2.00 / 1) (#3)
by cpinva on Wed Apr 01, 2009 at 05:41:55 PM EST

Scalia's dissent really has to torture the statute to reach a different conclusion.

*boldface mine.

give him any ideas!

justice scalia is truly a man out of his time, he'd be right at home as a jurist during the witch trials. better yet, i could easily see him as a traveling "inquisitor", complete with his own, custom made, "enhanced interrogation" tools.

: Well (2.00 / 1) (#4)
by squeaky on Wed Apr 01, 2009 at 05:47:09 PM EST

We all know that "torture" produces unreliable results.

Persuasive (none / 0) (#1)
by Steve M on Wed Apr 01, 2009 at 11:52:05 AM EST

The statutory language is pretty clear:

Unless replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.