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[Download January 12, 2008 Argument Calendar PDF]

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Harbison v. Bell
No. 07-8521


    Harbison v. Bell



    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. (1) As Chief Justice
    Rehnquist noted in Herrera v. Collins, (2)

    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.” (3) Thus, executive clemency is the “fail safe’ in
    our criminal justice system.”(4) 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.” (5)

    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

    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 statefunded
    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)?

    (1) Michael Heise, Mercy by the Numbers: An Empirical Analysis of Clemency and
    Structure , 89 Va. L. Rev. 239, 240-43, 252-54 (April 2003) (discussing how
    clemency is integral to the administration of justice and how the criminal justice
    system relies on clemency).

    (2) 506 U.S. 390, 411-12 (1993).

    (3) Ex parte Grossman, 267 U.S. 87, 120-21 (1925).

    (4) Herrera, 506 U.S. at 415; Heise, Mercy by the Numbers, supra, 89 Va. L. Rev, at
    252 ("[T]he need for clemency’s error correction function is at its highest in the death penalty

    (5) Gregg v. Georgia, 428 U.S. 153, 200 n.50 (1976) (opinion of Justices Stewart,
    Powell, and Stevens).



  • Docket Sheet From the U.S. Supreme Court.


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Counsel of Record

For Petitioner:

Dana C. Hansen-Chavis
Federal Defender Servs. of Eastern Tenn., Inc.
Knoxville, TN

For Respondent:

Gordon W. Smith
Associate Solicitor General
Nashville, TN


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