Update: I spent some time over the weekend thinking about this case. It seems to me that one likely upshot of Harbison is that some states that currently provide for the appointment of counsel at the clemency stage will stop doing so. After all, why spend scarce state funds to provide for something that the federal government will provide? This is arguably an inefficient response from a global point of view, since the federal government pays lawyers $175 per hour in capital cases, while most states pay far less -- for example, North Carolina pays $95 per hour in capital cases. But from the standpoint of any individual state, it's fiscally sound. Original Post: To paraphrase Bob Dylan, the times, they aren't a-changin'. That's the basic upshot of the United States Supreme Court's latest criminal law pronouncement, Harbison v. Bell, available here. The fact that Harbison leaves the law unchanged justifies the title of this post, but I actually think that the issue is reasonably interesting, so I'm posting about it anyhow. Harbison is a capital case from Tennessee. The defendant was convicted, sentenced to death, lost his direct appeals, and got no relief in the state post-conviction process. His case moved to federal court, and new counsel was appointed to represent him. He lost again in the district court, and lost a split decision in the circuit court. With the end of the road in sight, defense counsel then moved to expand the scope of counsel's representation to include representation during state clemency proceedings. Tennessee law does not provide for the appointment of counsel at the clemency stage, so defense counsel viewed this as the only way to ensure that the defendant would be represented at clemency. The district court denied the motion and the Sixth Circuit affirmed, relying on its own prior precedents regarding the proper scope of representation for federally-appointed counsel in death penalty cases, but the Supreme Court reversed. Interpreting 18 U.S.C. 3599, the Court ruled that death-sentenced inmates entitled to federally-appointed counsel are entitled to such counsel all the way, i.e., at all subsequent proceedings, even if the proceedings in question are state, rather than federal in nature. There's some limit to the Court's holding -- for example, it indicated that the representation wouldn't extend to a new state trial ordered by a federal court -- but it certainly read the statute expansively to reach the result that it did. North Carolina, like Tennessee, does not provide for appointed counsel at the clemency stage. See G.S. 7A-451. However, the Fourth Circuit has long taken the position that counsel appointed to represent a capital defendant in federal court should remain on the case through clemency, and has compensated counsel for the time spent on clemency. This practice doesn't seem to have been litigated, nor does it seem to be based on anything in the court's written plan for appointing counsel, available here, but I am assured that it is the case -- apparently informally. Thus, while Harbison probably had some North Carolina capital defense lawyers worried, the ultimate result in North Carolina is, to paraphrase the Four Tops, the same old song.
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