Constitution Project Salutes Supreme Court Ruling Guaranteeing Counsel in Clemency Proceedings

For Immediate Release: April 2, 2009

Washington, D.C. – Yesterday, the U.S. Supreme Court held in Harbison v. Bell that federal law authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation. Justice Stevens wrote the majority opinion, which Justices Kennedy, Souter, Ginsburg, and Breyer joined.

In September, the Constitution Project filed an amicus brief in the case, arguing that throughout its jurisprudence, the Court has widely recognized and relied upon clemency as a backstop to any fallibility in the criminal justice system. The clemency process serves as an error correction means of last resort at the end of the habeas process, which may reveal and allow state officials to consider evidence no court has ever been able to examine. The clemency process also permits the state executive to weigh the state’s interest in mitigating a sentence, in an exercise of mercy that no court can undertake.

The Constitution Project’s Death Penalty Committee recommended that each jurisdiction should provide competent and adequately compensated counsel at all stages of capital litigation. As the Committee argued in its 2006 report Mandatory Justice: The Death Penalty Revisited, “The lack of adequate counsel to represent capital defendants is likely the gravest of the problems that render the death penalty, as currently administered, arbitrary, unfair, and fraught with serious error — including the real possibility of executing an innocent person.”

Harbison has spent more than twenty years on death row, seeking reprieve through both direct appeals and state post-conviction relief. The Court 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. The law specifically provides indigent capital defendants with counsel in post conviction proceedings and insures that “unless replaced by a similarly qualified counsel upon the attorney or defendant’s own motion…each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings.”

Donate Now

US Constitution

Upcoming Events