Clemency in the High Court

Adam Liptak of the New York Times is reporting on criminal cases in the United States Supreme Court. Among other things, he observes:

The Supreme Court also agreed on Monday to hear an appeal from another Tennessee death row inmate, to resolve an issue that has divided federal appeals courts: Must the federal government provide lawyers to poor people on death row seeking clemency?

The case, Harbison v. Bell, No. 07-8521, turns on the proper interpretation of a federal law that provides lawyers to indigent death row inmates convicted in state court who challenge their death sentences in federal court. The law, part of the Terrorist Death Penalty Enhancement Act of 2005, says that such lawyers are to represent their clients in “all available post-conviction process,” including “proceedings for executive or other clemency.”

The solicitor general’s office, representing the federal government, had urged the Supreme Court to hear the case to resolve the conflict among the appeals courts but said the law applied only to federal proceedings.

But the Associated Press reports that the Justice Department has said, elsewhere, "There is no constitutional right either to clemency itself or to counsel to pursue it." The AP also notes:

Tennessee Gov. Phil Bredesen, a Democrat who has granted clemency once since 2003, said the state has no formal clemency proceedings and he would defer to the high court's decision. But if the Supreme Court finds that legal representation is required, he said, "then the federal government ought to pay for it."

Harbison was convicted of the beating death of an elderly woman back in 1983. See description of the gruesome murder here. See Adam Liptak's discussion of the Court and this case and others here. See Associated Press coverage here.

Tennessee: New Path to Clemency Reform?

This report discusses consideration of legislation that would end state health benefits for General Assembly lawmakers convicted of a felony. The bill - the byproduct of arrests and convictions of lawmakers involved in the “Tennessee Waltz” federal bribery sting - has alread passed in the State Senate unanimously. According to the report:

Under the bill, neither the surviving spouse nor the dependent children of a convicted lawmaker would be eligible to continue health care coverage. The bill was amended to include any governor convicted of a felony. The benefits would be stopped on the date of conviction or plea, and the person would not be eligible for any refund of premiums, co-payments or other costs previously paid. In the event that a conviction was later overturned and the person was acquitted, or was granted a full pardon, then the person would be restored all rights in regard to continuation of health care coverage, according to the bill.

The State Fiscal Review Office calculated that if a single lawmaker was convicted of a felony during 2008-09, the state would save more than $700,000 over a 25-year period. PardonPower wonders if there might not be greater concern about atrophy in clemency powers if state legislators are required to take a greater interest in the topic via this kind of legislation!

Tennessee: Judicial / Executive Showdown

Paul House was convicted of rape and murder in 1986. Fifteen years after the conviction, DNA evidence DNA determined the semen in his the victim was actually that of victim's husband, House. As a result, the U.S. Supreme Court ruled the DNA and other evidence were strong enough that a jury would not have convicted House -a determination also reached by lower courts in the appellate process. This article observes "many people thought the state would issue some type of clemency to [House], or even pardon him. But no, the state kept fighting to keep him in prison." Why? The article suggests Gov. Phil Bredesen (D) is demonstrating that it is not "easy for some people to admit that they're wrong." Now, a judge has issued an order calling for the release of House arguing, "While the public has an interest in having the state's judgments enforced, the public also has a compelling interest in the state not continuing to incarcerate individuals who have not been accorded their constitutional right to a fair trial."