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.

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Sticking It To The Constitution

Yesterday, I spoke on a panel on the occasion of Constitution Day here at Marquette University.  What follows is a copy of my remarks: 

Today’s panel asks, “What does it mean to stick to the Constitution?”  This is another way of asking how we – you, me judges, lawmakers – should go about interpreting the meaning of the constitutional text.

Today, this interpretative question is often presented as a binary debate between either originalism or a “living Constitution.”

My argument today is that this clear dichotomy is nothing more than an illusion.  There is not a choice between two stark extremes.  This is because, in practice, most originalists and advocates of a living Constitution tend to meet in the middle.

So this debate between originalism and the living Constitution is often very loud and very energetic, but it tends to distract us from the real question.   Both sides of the debate behave as if the original intent of the Framers of the Constitution is important.  They argue very heatedly over how much weight to give to this original intent, in comparison to other factors such as changing circumstances or contrary precedent.

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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).  

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