Millard Farmer on Capital Punishment

As I stated in a prior post on this Blog, I consider the continued use of capital punishment in the contemporary United States to be not only immoral but also surprising.  Is there something in the country’s history that helps explain why Americans still use capital punishment?

Millard Farmer, the legendary anti-poverty lawyer and opponent of capital punishment, argued that a reaction to the civil rights movement and the power struggle between the federal government and states’ rights are important factors.  When the national government required the southern states to end their discriminatory practices and dismantle their Jim Crow legal systems, according to Farmer, the southern states dug in regarding their right to use capital punishment.

Then, when the Supreme Court’s decision in Gregg v. Georgia (1976) blew away the constitutional clouds floating above capital punishment, the southern states saw it as a huge victory.  At least in this area, the feds had to stop pushing us around!

In the present, of course, the South remains the true home of capital punishment.  The so-called “Death Belt” – Florida, Georgia, Louisiana, and Texas – has been responsible for three quarters of all capital punishment in the United States over the past two decades.  If Farmer is right (and he is himself a southerner), this pattern results from both the South’s strong law-and-order attitudes and the region’s belief in states’ rights.

Continue ReadingMillard Farmer on Capital Punishment

Defendant Can Challenge Attorney’s Failure to Appeal Despite 2255 Waiver, Seventh Circuit Says

Charged in federal court with drug trafficking, Fred Dowell decided to enter into a plea agreement with the government.  The deal included various stipulations as to his sentence, but reserved for Dowell the right to challenge the government’s contention that he should be sentenced as a career offender under the federal sentencing guidelines.  Assuming the stipulations were accepted by the sentencing judge, Dowell waived his right to appeal the sentence, except that he expressly reserved the right to appeal an adverse career offender determination.  Dowell also surrendered his right to mount a collateral attack on the sentence under 28 U.S.C. §2255.

Dowell was, in fact, sentenced as a career offender.  By his account, he instructed his lawyer to appeal this decision, as he had reserved the right to do.  No appeal was filed.  By the time Dowell realized this, it was already too late for an appeal to be taken.  Accordingly, he tried a §2255 motion in the district court, contending that his lawyer’s failure to appeal constituted ineffective assistance of counsel in violation of the Sixth Amendment.  Sorry, said the district court, but you waived your rights under §2255 in the plea agreement.

Earlier today, the Seventh Circuit reversed in Dowell v. United States (No. 10-2912).  

Continue ReadingDefendant Can Challenge Attorney’s Failure to Appeal Despite 2255 Waiver, Seventh Circuit Says

From the Inside Out—a Law Student’s Perspective

“The Law is full of phraseology drawn from morals, and by mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 

 –Oliver Wendell Holmes Jr., The Path of the Law

While writing my Honors Scholar Thesis my senior year at DePauw University, Justice Holmes’ words became the perfect frame for my interdisciplinary study of legal ethics. This quote was taken from an address from an 1897 Harvard Law Review, The Path of the Law, 10 Harv. L. Rev. 457, (1897), in which Holmes offers a piece of pragmatic wisdom to the practicing lawyer. In essence, the lawyer should assume the role of “the bad man” who is not concerned with principles of ethics, axioms and systematic reasoning. Instead, the lawyer should be concerned with self-interest, preservation, and the immediate consequences influencing one’s actions. From this perspective, the lawyer better positions himself to protect those interests that “the bad man” might have in predicting how the court will respond, given the facts and circumstances that surround a particular case. As a somewhat critical undergraduate student, I noted that this perspective makes broad, “questionable” assumptions about the client while offering a somewhat cynical philosophy for the role that the lawyer must play for a successful study and practice of law. The emphasis on practice and prediction is a hallmark of Holmes’ pragmatic view of the law with experience at the foundation.

Holmes represented a critical juncture in the theory and practice of law, drawing attention to the intellectual content of the law, reviving historical relationships between law, ethics, and practical wisdom. Holmes believed in demystifying the law, removing notions of omnipresent knowledge and appeals to “the infinite” in order to focus on practical application and reasonable prediction. As a philosophy student, with a focus in ethics and morality, I was never a fan of pragmatism. In fact, I was rather perturbed by Holmes’ candid admission. Nonetheless, I found Holmes’ position to be “reasonable” and incredibly helpful as I embarked on my interdisciplinary study of legal ethics, specifically focusing on the duty to protect client confidences.

Continue ReadingFrom the Inside Out—a Law Student’s Perspective
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