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Clemency, Counsel, and Congress

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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 behalf of a murderer set to be executed by a state, after that murderer has already made and lost his case to the federal courts? Putting aside the very rare cases with genuine questions of actual innocence and considering the typical case, I can't think of a single one.

Should a statute that appears to provide such federally funded counsel be enforced as written, despite the lack of a decent policy reason? Yes. The very first substantive section* of the Constitution provides, "All legislative Powers herein granted are vested in a Congress...." The Constitution does not go on to say, "except when they are acting like a bunch of Bozos."
The language that is now 18 U.S.C. § 3599 is an exceptionally sloppy piece of drafting. The right to appointed counsel in all federal collateral reviews in capital cases, whether for state prisoners under 28 U.S.C. § 2254 or federal prisoners under § 2255, was slipped into a drug bill in 1988. It was awkwardly placed in the food and drug code, title 21, as 21 U.S.C. § 848(q)(4)-(10). In a commendable bit of code maintenance, Senator Kyl put a provision in the Patriot Act reauthorization bill to move the language to its present, logical location in the criminal code, title 18, but no change of substance was made in order to keep the provision uncontroversial. So the language was moved warts and all.

Paragraph (a)(2) provides:

In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).

Now, if we want to be strictly literal, the defendant in a habeas proceeding is the warden, and his representation is provided by the state. None of the states are actually indigent yet, although some are getting there. Presumably, though, Congressmen Conyers et al. actually meant the habeas petitioner, the defendant in the state trial being reviewed but the plaintiff in the federal habeas proceeding.

Subsection (e) provides:

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.

The U.S. Government, as amicus, asked the court to read an implicit limitation to federal clemency into the last sentence.  Justices Scalia and Alito agreed, but the majority rejected it, as did Chief Justice Roberts and Justice Thomas in grumbling concurrences in the judgment. I'm with the grumblers. There really is no getting around the fact that "other clemency" makes no sense unless it applies to states. There is no "other" in the U.S. Constitution; clemency is strictly executive (Art. II, § 2). Some states delegate clemency to independent boards that may or may not be considered executive, and some involve the judiciary.

Some day, hopefully in the not-too-distant future, Congress may be back in the control of persons of sense, and this statute could be amended to provide federal funding here only for genuine claims of actual innocence. In the meantime, this case is controlled by the principle that nowhere in the Constitution does it say "Congress shall make no dumb laws." Cf. U.S. Const, Amdt 1.

Doug Berman has this post on the case at SL&P.


* See yesterday's post on prefatory sections, such as "whereas" clauses.

1 Comment

Do you think that this could be used as a hook to get some federal court involvement in clemency? Maybe the enforcement of something like discovery? It seems a stretch, but look at how AEDPA is being subverted.

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