Professor Dan Kobil Spearheads Effort Among Governors to Submit Brief in U.S. Supreme Court Case

September 22, 2008

Nationally recognized clemency expert Professor Dan Kobil has helped to write and file an amicus curiae brief with the U.S. Supreme Court on behalf of current and former governors in support of the petitioner in the case of Edward Jerome Harbison v. Ricky Bell (Case No. 07-8521).

Kobil, who is serving as counsel of record, wrote the brief and organized the effort among the governors, along with Supreme Court litigation specialists Irving Gornstein and Kathryn Tarbert from O’Melveny & Myers LLP in Washington D.C.  

Harbison v. Bell concerns whether death row inmates who are seeking clemency from state Governors or Pardon Boards can be represented by federally-funded attorneys, in the event that no other attorneys are available to help prepare a petition for clemency.

According to Kobil, the federal law in question is 18 U.S.C. §3599(e) which provides that counsel is available to any defendant sentenced to death in “proceedings for executive or other clemency as may be available to the defendant.” 

Kobil says, “Despite this fairly clear language, there is a split in the federal circuit courts as to whether this law allows federally-funded attorneys to seek only executive clemency from the President (the position of the 5th, 6 th and 11th Circuits), or to also seek clemency from state decision-makers (the positions of the 8 th and 10 th Circuits). The current and former governors who joined the brief have all had the responsibility to use the clemency power in states that employ the death penalty. “

“Based on their experience, the governors wanted to share with the Court their views on the vital role of defense counsel in ensuring that state executives obtain the information they need to fulfill that responsibility. Because of the legal and factual complexity of the issues that can arise in capital clemency proceedings, it is rarely possible for clemency decisions to be fully informed without the participation of counsel. Thus, when funding for attorneys is not otherwise available, the Amicus brief points out that federal funding of clemency counsel pursuant to 18 U.S.C. § 3599 serves as an essential backstop, allowing governors to obtain the information they need to make fully informed clemency decisions.”

Kobil spent a good deal of the summer writing and editing the brief, and contacting current and former governors to enlist their participation. The bipartisan group of current and former chief executives who have joined the brief, which was submitted to the U.S. Supreme Court on Sept. 15, 2008, are Garrey E. Carruthers (NM), Richard F. Celeste (OH), John J. Gilligan (OH), James B. Hunt Jr., (NC), Gary E. Johnson (NM), Joseph E. Kernan (IN), James G. Martin (NC), Ted Strickland (OH), John Fife Symington III (AZ), James R. Thompson (IL), and Dick Thornburgh (PA).

“We believe that it is vital that governors and members of the Pardon Boards who are deciding whether to commute a death sentence have the most complete information, and that it be presented in a professional manner,” says Kobil. “Our brief argues, primarily as a matter of policy, that the executive clemency process will be improved by the participation of federally-funded counsel in capital cases. We recount to the Court a number of instances in which the participation of defense counsel was crucial in assisting governors to make more fully-informed clemency decisions.”

Kobil brings many years of research and expertise to this issue. He has published extensively on the subject of clemency, particularly as it relates to the death penalty. (See “Should Mercy Have a Place in Clemency Decisions?” in Mercy Forgiveness, and Clemency (Stanford University Press, 2007); “The Evolving Role of Clemency in Capital Cases” in America’s Experiment With Capital Punishment (Carolina Academic Press, 2003); “ Due Process in Death Penalty Commutations: Life, Liberty, and the Pursuit of Clemency, ” 27 University of Richmond Law Review 201 (1993); and “ The Quality of Mercy Strained: Wresting the Pardoning Power from the King,” 69 University of Texas Law Review 569 (1991))

He has testified before the U.S. House of Representatives Judiciary Committee’s Subcommittee on the Constitution and was invited to give testimony before the American Bar Association's Justice Kennedy Commission on how the clemency power can be revived. Additionally he does much pro bono work on behalf of the ACLU and death-sentenced individuals.

Harbison v. Bell will likely be scheduled for oral argument early in 2009. The full brief may be found online.