In the 2008 case of Edward Jerome Harbison v. Ricky Bell, Warden, the U.S. Supreme Court ruled on whether federal funding could be used for state clemency proceedings in capital cases under 18 U.S.C §3599(a)(2). Harbison was convicted of murder and sentenced to death by a Tennessee court in 1983. After exhausting his state and federal appeals without success, he sought federally funded counsel to represent him in state clemency proceedings. The Sixth Circuit Court denied his request stating that §3599 does not extend to state clemency proceedings. However, upon appeal, the Supreme Court reversed this decision with a majority vote of seven justices against two dissenting votes from Justices Thomas and Scalia. The high court held that federally appointed counsel is authorized by law to represent their clients in all available post-conviction processes including applications for executive or other types of mercy as may be available under applicable laws before execution.

In the dissenting opinion for Harbison v. Bell, Justice Scalia argued that federal funding should not be provided to defense counsel in state clemency proceedings. He contended that the majority misinterpreted 18 U.S.C §3599(e), which provides federally funded counsel for habeas corpus proceedings and "other post-conviction" processes. According to Scalia, this phrase does not include state clemency procedures because they are executive rather than judicial actions and thus fall outside of what he believes Congress intended when it enacted §3599(e). Furthermore, he asserted that if Congress had wanted to provide federally funded counsel for such procedures, it would have explicitly stated so in the statute's text or legislative history - neither of which was done here. Therefore, Scalia concluded that Harbison did not have a right to federally funded representation during his state clemency proceeding.