by TChris

A few centuries ago, banishment was a popular alternative to death as a punishment imposed by English judges. Colonial America received its share of banished horse thieves and other offenders, as did Australia.

Modern American judges typically lack the power of banishment in their arsenal of punishments, but legislative bodies have taken to telling sex offenders "you can't live here" with the hope of making them some other jurisdiction's problem. The resulting dilemma: where can they live? And how can society expect to achieve rehabilitation if banishment, rather than treatment and supervision, is perceived as the cure?

by TChris

Commentary on the president’s decision to elevate his White House Counsel to a Supreme Court seat begins to fill the web. Lyle Denniston argues that Harriet Miers “will have the burden of proving that she is qualified to join the Court and was not chosen on the basis of cronyism. That could pose a serious challenge.” Joel Achenbach explains why Miers is qualified for the job:

1. She's a lawyer.

2. She's tight with Dubya.

3. She works just a few feet from Bush and thus saved him from the hassle of a protracted search.

4. She has never been a judge and thus has no record that might generate problems in a confirmation hearing.

David Bernstein at The Volokh Conspiracy agrees that Miers is a "well-connected insider" who is likely to favor executive power (at least for this chief executive) over the other branches of government, but also notes that the nomination may be opposed by members of the president's base because Miers lacks the anti-abortion track record they thought they'd been promised. And Prof. Doug Berman laments Miers’ lack of background in criminal law and sentencing issues.

by TChris

Adam Liptak continues his extraordinary analysis of our prison nation in today’s NY Times, specifically focusing on the 9,700 prisoners who are “serving life sentences for crimes they committed before they could vote, serve on a jury or gamble in a casino — in short, before they turned 18.” The number of juvenile offenders serving life sentences has increased significantly in the past decade as legislators have searched for new ways to posture themselves as “tough on crime.” Tough on children would be a more honest campaign slogan.

by Last Night in Little Rock

CNN just put out the following breaking news: "President Bush to nominate White House counsel Harriett Miers to replace retiring Supreme Court Justice Sandra Day O'Connor, CNN has learned." See the just posted articles at ABC News , the NY Times, and the Chicago Sun-Times.

by Last Night in Little Rock

Texas Lawyer published an article today, republished on Law.com, that Dick DeGuerin's entry into the DeLay case makes it far tougher for Ronnie Earle: DeLay Case Pits DA in Rematch Against Prominent Criminal Defense Lawyer.

The article discusses the dynamics between Earle's office and DeGuerin as defender in high-profile cases, keying on the 1994 prosecution of Kay Bailey Hutchinson, then the Texas state Treasurer, running for U.S. Senate. The Hutchinson case was dismissed on directed verdict.

The article also interviews lawyers who opine that the case appears thin.

by Last Night in Little Rock

Former Guantánamo Army Muslim Chaplain James J. Yee just published a book that states "that military authorities knowingly created an atmosphere in which guards would feel free to abuse prisoners," according to an article in today's NY Times.

Yee, it will be remembered, was the Muslim Chaplain arrested with much ballyho for espionage and, to the embarrassment of the Pentagon, was found completely innocent and released.

With the focus last week on Tom Delay, Bill Frist and Judith Miller, there has been very little attention devoted to Timothy Flanigan, President Bush’s controversial Deputy Attorney General nominee, who is tied to indicted lobbyist Jack Abramoff and the torture scandal.

In 2002, Flanigan was the top deputy to then-White House counsel Alberto R. Gonzales -- during the period when the infamous Justice Department memo was written opining that if pain caused by physical coercion during interrogation did not result in major organ failure or death, it wasn't really torture.

As Senator Dick Durbin said in a Judiciary Committee meeting last week (received by e-mail):

Wow. Say hello to the Saddam Hussein Trial Blog by the Case Western University School of Law. Bookmark it now for later, it's an incredible resource.

On October 7, there will be a live webcast on Torture and the War on Terror sponsored by the law school's Frederick Cox International Law Center. Here's the link to view it.

Speaking of torture, one other great find today: Law Prof Jack Balkin and the other law profs writing at Balkinization have compiled all of their writings on "Torture, Interrogation, Detention, War Powers, and Office of Legal Counsel" in one place. I hope they publish it as a book, but in the meantime, it's free and just about the best stuff out there on these issues from a progressive, legal perspective.

Michael Isikoff reports that Joseph Tate, Libby's lawyer, says Libby did not speak to Novak. Also, the call between Libby and Miller in jail was a four-way conference call with both their lawyers on the call.

Isikoff also reports that Fitzgerald was ready to extend the grand jury for another term, which could have left Miller in jail for up to another 18 months, even without a criminal contempt charge.

Libby's defense remains:

Tate acknowledges that Libby did indeed tell Miller that Iraq war critic Joe Wilson's wife (Plame) had arranged for Wilson to take a CIA-sponsored trip to Africa to probe reports that Iraq was seeking uranium for a nuclear bomb. But he says Libby did not know Plame's real name nor her undercover status at the CIA.

As I wrote in an overly long post earlier, I think the signs point to no indictments for leaking Plame's identity but possible indictments for perjury, making false statements to federal officials, obstruction of justice and some kind of conspiracy charge.

Conservative lawyer-blogger Beldar discusses the New York Times Magazine's puff piece today on New York Attorney General Eliot Spitzer, which posits that maybe the Dems need Sptizer on their 2008 national ticket. Spitzer is likely to be New York's next Governor.

....is Spitzerism useful only in the narrow context of Democratic law-enforcement officials running for higher office? Or is there, lurking somewhere in Spitzer's experience, an approach that Democrats around the country could mine for political success?

Beldar wonders whether Spitzer might make it on to an Edwards ticket in 2008. My answer is no, happily he won't. No way is Sptizer ready for a national ticket. He could be in line for the Attorney General spot in a Democratic Administration though.

That's Crooks and Liars' John Amato with actor George Clooney. Way to go, John.

Think Progress reports:

Near the end of a round table discussion on ABC's This Week, George Stephanopoulos dropped this bomb:

"Definitely a political problem but I wonder, George Will, do you think it's a manageable one for the White House especially if we don't know whether Fitzgerald is going to write a report or have indictments but if he is able to show as a source close to this told me this week, that President Bush and Vice President Cheney were actually involved in some of these discussions."

Crooks and Liars has the video.