The Supreme Court has called executive clemency “the ‘fail safe’ in our criminal justice system.” But there is no constitutional right to counsel for people seeking mercy.
The law in question says lawyers handling federal capital cases must also be paid to represent their clients in “proceedings for executive or other clemency as may be available to the defendant.”
William M. Jay, an assistant to the solicitor general, said the law applies only to “federal proceedings before a federal officer.”
Dana C. Hansen Chavis, a federal public defender, told the justices that interpreting the law to apply only to federal clemency would render its language meaningless in many cases, as people convicted of state crimes are not eligible for federal clemency.
Her client, Edward J. Harbison, is on death row in Tennessee for beating a woman to death with a marble vase in 1983 when she found him burglarizing her house.
The phrase “executive or other clemency,” Ms. Hansen Chavis added, gave a further indication of Congressional intent. All federal clemency proceedings take place within the executive branch, she said, and so the words “or other” must have referred to state proceedings in which other parts of the government play a role in granting clemency.
Justice Antonin Scalia, who speaks often about the importance of fidelity to statutory text, liked that point. He was less receptive when Justice Stephen G. Breyer observed that Representative John Conyers Jr., Democrat of Michigan, had said he understood the law to apply to state clemency proceedings.
“I thought this was a federal law,” said Justice Scalia, who is hostile to judicial consideration of legislators’ statements in determining what laws mean. “Is this a Conyers law?”
Justice Breyer responded, “He happens to be the person who wrote it.” Justice Scalia continued to interrogate Justice Breyer as Mr. Jay, representing the government, looked on.
“Did his colleagues know what he said?” Justice Scalia asked.
“Yes, they did,” Justice Breyer responded.
Chief Justice Roberts stepped in. “Counsel, you lead,” he said to Mr. Jay. “We direct our questions to counsel.”
Mr. Jay argued that interpreting the law to include state clemency proceedings would open a floodgate and that lawyers paid by the federal government would end up handling other later state proceedings like stay applications and retrials.
Ms. Hansen Chavis rejected that interpretation, a strategic litigation choice that struck some justices as inconsistent, if not backward.
“It seems to me that it would be more likely that Congress wanted this counsel to continue on in state proceedings” like trials, Chief Justice Roberts said. “The clemency thing seems a little bit more removed. It’s a different argument: you know, ‘We’re guilty, but show us mercy.’ ”
The better argument, Chief Justice Roberts said, would have been the more aggressive one. “It doesn’t seem to doom your position at all,” he told Ms. Hansen Chavis.
But Ms. Hansen Chavis mostly clung to her position, although in the end she acknowledged that there were other possible interpretations. She insisted, in any event, that the statute addressed at least state clemency proceedings.
“It makes sense that Congress would provide for continuous representation for a capital defendant in that it fills a need, a gap in representation,” she said. “It’s efficient, and it also helps to improve the reliability of the death penalty as it’s administered in this country.”
In a brief, Mr. Harbison’s lawyers said the preparation of a comprehensive and persuasive clemency petition was “daunting work” that required the attention of sophisticated and well-informed lawyers. They suggested that a petition in Mr. Harbison’s case would be based on his intellectual and emotional shortcomings and what they said was a wretched childhood filled with poverty and abuse.