Death Row: Court OK’s Federal Defenders for State Clemency Hearings

In an unusually mixed decision for the consensus-driven Roberts Court, the Supreme Court today ruled that federal public defenders can represent death-penalty clients at state clemency hearings. The more liberal justices said federal defenders could do so, but only if the state hearings followed a federal proceeding. Justice Thomas went further, saying that the law as written does not impose such a restriction, and in fact federal defenders would be allowed in any state capital case. Chief Justice Roberts agreed with the majority, but only insofar as the subsequent state proceedings are extra-judicial. Only Justices Scalia and Alito felt that federal defenders shouldn’t be allowed at state proceedings, period.

To get the result they wanted, the majority clearly made hash of the relevant statute, interpreting parts one way but other parts the opposite way, and then adding new interpretations to undo the absurdities that could have then resulted. Roberts allowed himself to justify the same outcome on a fine-point quibble. Only Thomas, Scalia and Alito had truly intellectually honest positions, but they didn’t fit the policy which the Court sought to advance. Once again, it was a case of making the law fit the Justices’ policy wishes — an undercurrent that often explains appellate decisionmaking.

At issue here was 18 U.S.C. § 3599, which provides for appointed counsel in federal proceedings. These lawyers are paid for out of the federal budget, when a client cannot afford a private attorney, and usually only handle matters in federal court. State court matters are typically handled by lawyers appointed and paid for by the state. Among other things, § 3599 sets forth what kind of matters a federally appointed lawyer can handle.

In this case, Harbison v. Bell, Edward Harbison was sentenced to death back in 1983 (yes, 26 years ago!) for beating a 62-year-old woman’s head to a pulp with a vase, after she surprised him while he was burgling her house.

Skipping over years of appellate back-and-forth, we come to a 2005 habeas petition in federal court. The Federal Defender Services of Eastern Tennessee were appointed to represent Harbison during this habeas proceeding. The petition was ultimately denied.

That having failed, Harbison tried for a clemency hearing in Tennessee state court. But he couldn’t get appointed counsel for such a hearing. The Tennessee Supreme Court had held that state law did not allow state-appointed lawyers in clemency hearings.

So Harbison’s federal defender filed a motion, asking that she be allowed to include the state clemency proceeding as part of her federally-compensated representation.

It wasn’t a huge stretch to ask for this, as §3599 permits federal defenders to represent their clients at “proceedings for executive or other clemency as may be available.” But Tennessee is in the 6th Circuit, which had previously construed §3599 as only applying to federal proceedings. So the district court denied the motion, and the 6th Circuit affirmed.

There being a split in the circuits on this issue — the 5th, 6th and 11th saying no federal assistance at the state level, but the 8th and 10th saying it’s okay — it was no surprise that the Supreme Court granted cert. Oral arguments were held in January.

The Court’s majority opinion is fairly straightforward: the plain language of §3599 doesn’t say anything limiting its scope to federal proceedings. In fact, its reference to “or other clemency” has to mean state proceedings, because federal clemency is strictly executive.

You can’t go out and get a federal defender for a state clemency hearing, however, unless you already had that federal defender to start with. In this case, the federal defender was on the case for the habeas proceeding, and the clemency one came afterward, so it was okay. But if the order had been reversed, the Court wouldn’t have permitted it.

Justice Stevens wrote the majority decision, and got the other four more liberal Justices to go along with the whole thing. Stevens was a little muddled, though, as his reading of the statute was dramatically different from clause to clause, and thus found that parts of it only apply to federal capital defendants.

Chief Justice Roberts agreed with Stevens’ result, but not with his reasoning. Roberts agreed that the federal defenders ought to be permitted at subsequent state clemency hearings. But he did not think that the plain language of §3599 said so. Just because the federal statute didn’t come out and say it was limited to federal cases, that doesn’t mean that’s not what Congress intended. Roberts felt (and Harbison conceded) that “it is highly unlikely that Congress intended federal habeas petitioners to keep their federal counsel during subsequent state judicial proceedings.”

Roberts astutely noted, however, that §3599 does not open the door to subsequent judicial proceedings. That would be a problem, because post-habeas judicial proceedings are by definition new matters, and §3599 only mentions “subsequent stages” of the federal matter. Clemency hearings, however, are non-judicial requests for mercy from the governor or a panel. We would expect this distinction to be raised for sure in some future case.

Justice Thomas was true to form, refusing to look outside the words Congress used to seek its intent, as “our task is to apply the text, not to improve upon it,” even if that produces “very bad policy.” He therefore felt the §3599 necessarily included state clemency proceedings, because the statute applied to people challenging either state or federal convictions, and state clemency is the only clemency available for state convictions.

In fact, Thomas went beyond the majority’s reading. The majority (and Roberts) assumed that parts of §3599 must be limited to federal proceedings, at least in some respects. But under Thomas-style interpretation it must be read to provide federal counsel “to indigent defendants in every criminal action in which a defendant is charged with a crime which may be punishable by death.” (Emphasis his.)

Justices Scalia and Alito were the only holdouts, finding that Congress was only talking about federal proceedings. After pointing out the obvious befuddlement of Stevens’ argument (as one would expect Scalia to do), they pointed out that “Section 3599 was enacted as part of a bill that created a new federal capital offense, and it is perfectly reasonable to assume that a federal statute, providing federally funded counsel, applies in federal proceedings only, even where the statute contains no such express limitation.” (Emphasis Scalia’s.)

As to the “or other clemency” on which the majority hung its hat, Scalia pointed out that the very congressional history which the majority felt was important “defeats the inference the Court wishes to draw.” The phrase “or other clemency” clearly did not imply or contemplate state proceedings, but was simply and unquestionably superfluous.