On January 12th, the U.S. Supreme Court heard arguments in a Tennessee case called Harbison v. Bell. The issue is whether federal courts are required to pay for lawyers in state clemency proceedings. If Harbison loses, it could have disastrous consequences for justice and fairness in North Carolina. It could also present our new governor, Beverly Perdue, with one of the greatest challenges of her tenure.
Clemency means “disposition to show forbearance, compassion, or forgiveness in judging or punishing; leniency; mercy.” In a death penalty case, clemency refers to the final stage before an inmate is executed. Both sides present evidence to the governor or another executive authority, who then decides whether the execution will proceed. Clemency is important because it is the last chance to prevent the execution of an innocent person or someone who for another reason should not have been sentenced to death.
In North Carolina, as in many states, the plea is made by the inmate’s lawyers directly to the governor and/or members of her staff. The governor has the opportunity to learn information that the jury didn’t know, and which might have affected their decision about the defendant’s guilt or the appropriate sentence for the crime. If the governor decides to grant clemency, the inmate’s sentence is commuted to life without the possibility of parole. If not, he is executed. The Fourth Circuit Court of Appeals, a federal court, appoints and pays attorneys to prepare the clemency presentation. There is no state funding for clemency.
Two former North Carolina governors, Jim Hunt (D) and Jim Martin (R), filed a “friends of the court” brief with the Supreme Court in support of the inmate’s position in Harbison. This kind of brief is an opportunity for someone who is not a party in a lawsuit, but has a strong interest in its outcome, to inform the Court of their perspective and assist them in deciding the case.
Hunt and Martin are two of eleven current and former governors who joined in the brief. Each of the eleven has served as governor of an active death penalty state, and has been called upon to decide whether an inmate should live or die. The Governors urged the Court to allow federal funding of counsel in clemency proceedings, noting that the assistance of defense attorneys is essential to them in making this weighty decision.
While every state has its own method of determining who should receive clemency, the Governors assert that all of the models assume a full exploration of the issues. To fulfill his or her responsibility to promote fairness, accuracy, and public confidence in the system, a governor must closely examine both the facts related to the inmate’s guilt and those related to the inmate’s deservingness of a death sentence. In addition to examining issues related to guilt, a Governor may be called upon to consider issues like mental illness, the effect of race on sentencing, and the inmate’s capacity for remorse and redemption.
The Governors’ brief profiled several cases, giving examples of situations in which clemency was deemed appropriate. In referencing the case of Earl Washington, Jr. of Virginia, the Governors acknowledged that the appeals process is not 100% guaranteed to prevent the execution of an innocent person. The brief also described the North Carolina case of Anson Avery Maynard. In Maynard’s case, it was unclear whether or not he was the person who pulled the trigger. Having some doubt about Maynard’s guilt and the degree of his culpability, Governor Martin granted him clemency.
Clemency is also important in cases where the inmate’s guilt is not in question. For example, when Governor Mike Easley granted clemency to Robert Bacon, Jr. in 2001, many believed it was because the Governor was concerned that Bacon was sentenced to death because of racial bias. In other states, clemency has been granted for a variety of reasons, including serious mental illness, remorse and rehabilitation, disproportionate sentencing as compared to a co-defendant, poor representation by trial counsel, and even pleas for mercy from the victim’s family.
What It Means for North Carolina
The Court’s decision in Harbison v. Bell could coincide with the end of the moratorium on executions in North Carolina. If Harbison loses, Governor Perdue might find herself confronted with an unprecedented number of clemency decisions to make just as all of those inmates have lost their attorneys.
Inmates have been represented by counsel in every clemency hearing in the modern era. It would be a radical departure from precedent for Perdue to allow inmates to represent themselves, or to refuse them any representation at all. Were the Governor to choose this route, it would surely lead to further litigation and delay. Without federal assistance, it is more likely that Perdue will find herself trying to scrape up additional state funding for an already cash-strapped indigent defense system to take on these new cases.
Whatever the Court decides, it is important that Gov. Perdue embraces what Gov. Hunt and Gov. Martin have written about the importance of the clemency process. Every inquiry should be broad in scope; taking into account not only guilt or innocence, but also matters related to culpability, sentencing, and the overall fairness of the death penalty. The Governors’ brief mentions a few considerations – mental illness, possible innocence, race, and remorse – but there are many more. Governors must familiarize themselves with both the court file and information outside the record. The process of receiving, reviewing, considering, and exploring all of this evidence is necessarily fact and resource-intensive, requiring the governor to delve into a wide range of issues. As the brief concludes, “Only through this kind of process can Governors fulfill their responsibility to make capital clemency decisions that are as fair and accurate as possible.”
Governor Martin and his staff spent days talking to witnesses, reviewing evidence, and deciding whether to grant clemency to Anson Maynard. Given the volume of cases she will be confronted with, it may not be possible for Gov. Perdue to dedicate a week to each petition, but she can still be guided by her predecessors’ call to approach clemency hearings with the utmost seriousness and dedication to fairness. When for whatever reason the courts have failed to weed out the innocent and those otherwise undeserving of death, it falls to the governor to have the courage and integrity to ensure that this last safeguard against wrongful execution functions as it should.
A transcript of the oral argument in Harbison is available here. A summary of the case and links to petitions filed are here.