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Harbison v. Bell
Habeas Corpus, Executive Clemency, Anti-Terrorism and Effective Death Penalty Act
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
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
its 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).
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