Category: Criminal Procedure

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Adventures on the Back of the Envelope: Katz v. United States and the Popularization of the Phrase “Reasonable Expectation of Privacy”

I find it interesting how a case often is seen as standing for one thing when it’s decided, and something quite different years later. Relatedly, it can be interesting to see how courts come to glean from a decision a rule — or at least a catchphrase — that they then rely upon to decide cases before them.

I recently conducted a back-of-the-envelope exercise in this vein, sparked by a student’s question regarding the Fourth Amendment case, Katz v. United States. The gist of the student’s question was, how did the phrase “reasonable expectation of privacy” come to summarize the “was there a search” inquiry that kicks off most Fourth Amendment analysis–particularly when the phrase is found not in the majority opinion in Katz, but in Justice Harlan’s concurring opinion?

There’s a practical answer, of course, relating to the facts that (1) the next year, Terry v. Ohio parroted Harlan’s phrasing, and (2) Harlan gave courts a somewhat more workable (though still confusing) standard, or at least, framework for decision than Justice Stewart’s majority opinion did. But how quickly did courts catch on to this?

To probe this matter, working with the Westlaw ALLCASES database, I identified all state and federal cases that cited to Katz in certain subsequent years, and then, within each of these subsets, how many of these cases invoked the phrase “reasonable expectation of privacy.” The results:

1968: 3/58 (= 5%)

1969: 11/120 (=9%)

1971: 16/140 (=11%)

1973: 52/192 (=27%)

1977: 63/175 (=36%)

1981: 152/271 (=56%)

1985: 119/211 (=56%)

1989: 96/178 (=54%)

1993: 96/217 (=44%)

1997: 97/183 (=53%)

2001: 94/217 (=43%)

2005: 102/270 (=38%)

2009: 146/392 (=37%)

(I don’t know why we’ve seen a recent decline in the invocation rate for “reasonable expectation of privacy”; perhaps it has something to do with more cases being incorporated within Westlaw, perhaps something else.)

So, it looks like it took a little time–about a decade–for “reasonable expectation of privacy” to catch on as shorthand for the Katz approach. Either that, or the sorts of cases that courts heard changed over time, so as to present issues requiring resort to (or at least mention of) this test more often as the 1970s progressed. Either explanation is plausible, I suppose. One also wonders whether similar slow-burn patterns of diffusion exist in cases where a concurring opinion (in a non-Marks setting) becomes accepted as stating the governing rule.

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Stanford Law Review Online: Pulling the Plug on the Virtual Jury

Stanford Law Review

The Stanford Law Review Online has just published a Note by Nicolas L. Martinez entitled Pulling the Plug on the Virtual Jury. Martinez takes issue with Judge William Young’s proposal that Khalid Sheikh Mohammed be tried via videoconference from Guantanamo Bay by a jury sitting in New York:

Most people probably figured that the debate over where to try alleged 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) had ended. Indeed, it has been well over a year since Congress forced Attorney General Eric Holder to reluctantly announce that KSM’s prosecution would be referred to the Department of Defense for trial before a Guantanamo military commission. But a provocative proposal put forth recently by Judge William G. Young of the District of Massachusetts has revitalized one of the most contentious legal debates of the post-9/11 era. In a nutshell, Judge Young proposes that an Article III court try KSM at Guantanamo, but with one major twist: the jury would remain in New York City.

He concludes:

Perhaps unwilling to refight the battles of two years ago, Congress has shown no inclination to retreat from its apparent view that KSM may only be tried by a military commission at Guantanamo. As a result, following through on Judge Young’s plan, which could be viewed as an attempt to circumvent the will of Congress, might lead some legislators to harden their stance on civilian trials for alleged terrorists and propose even more disagreeable legislation to that end. This is not to say that creative solutions aimed at fortifying the rule of law in a post-9/11 world should be held hostage to the proclivities of intransigent voting blocs in Congress. Quite the opposite, in fact. But the likely political ramifications of Judge Young’s proposal cannot be ignored, especially in an election year when few members of Congress may be willing to spend their political capital defending the need to hold KSM’s trial in federal court.

Even though Judge Young’s provocative suggestion should not be adopted in its current form, he has moved the conversation in the right direction. Continuing to think imaginatively about ways to preserve our rule of law tradition from external threats is immensely important, particularly in the context of national security crises. For it is when the rule of law can be so easily discarded that it must be most doggedly defended.

Read the full article, Pulling the Plug on the Virtual Jury at the Stanford Law Review Online.

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Biometric Databases and Quantitative Privacy

The new $1 billion Next Generation Identification (NGI) system is now in its roll out phase. NGI–a joint project of federal, state, and local law enforcement and other agencies — is a nationwide network of databases containing images of the body’s characteristics, such as fingerprints, iris, retina, voice, and face.  Here is a little primer on how biometric systems work (see my SoCal Reservoirs of Danger article).  Databases store images of biometric information, either as pictures or mathematical formulas of images called templates.  The biometric system matches an individual’s fingerprint, for instance, with an image or template stored in databases.  Aside from governmental forays into biometric collection and use (which are many), private biometric providers hold templates of millions of individuals.  Elementary schools, airports, gas providers, grocery stores, health clubs, workplaces, and even Disney’s theme parks collect iris scans and fingerprints to secure access to physical plants and/or accounts.  Companies reportedly are creating central clearinghouses of biometric information for commercial use.

According to Assistant Director Tom Bush of the Criminal Justice Information Services Division, NGI  is a “state-of-the-art identification system that will be bigger, faster, and better than IAFIS (Integrated Automated Fingerprint Identification System).”  It is “bigger” because it will increase the capacity of fingerprint storage plus house multimodal biometrics records like palm prints and iris scan and have room to accommodate future biometric technologies (i.e., voice, gait, etc.) as they become available.  It is “faster” because it will speed up response time for high priority criminal ten-print submissions from two hours to about 10 minutes on average. It is “better” because going beyond fingerprints as biometric identifiers will enhance the investigative and identification processes. Adding palm prints makes sense, according to Bush, because latent prints left behind by criminals at crime scenes are often palm prints. NGI is also being developed “to be compatible with other U.S. biometric systems and potentially with those of some foreign partners.”

The FBI’s NGI website proclaims that its many virtues include:

Interstate Photo System Enhancements

tatoo2.jpg

Closeup photo of an arm tattoo.  Currently, the IAFIS can accept photographs (mugshots) with criminal ten-print submissions. The Interstate Photo System (IPS) will allow customers to add photographs to previously submitted arrest data, submit photos with civil submissions, and submit photos in bulk formats. The IPS will also allow for easier retrieval of photos, and include the ability to accept and search for photographs of scars, marks, and tattoos. In addition, this initiative will also explore the capability of facial recognition technology.

Multimodal Biometrics

facial2.jpg

The future of identification systems is currently progressing beyond the dependency of a unimodal (e.g., fingerprint) biometric identifier towards multimodal biometrics (i.e., voice, iris, facial, etc.). The NGI Program will advance the integration strategies and indexing of additional biometric data that will provide the framework for a future multimodal system that will facilitate biometric fusion identification techniques. The framework will be expandable, scalable, and flexible to accommodate new technologies and biometric standards, and will be interoperable with existing systems. Once developed and implemented, the NGI initiatives and multimodal functionality will promote a high level of information sharing, support interoperability, and provide a foundation for using multiple biometrics for positive identification. Read More

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Crime and Criminal Lawyers

The always blunt Scott Greenfield writes:

“I’ve spoken with many lawyers, many readers. You know who you are. You know that I know the truth. The business of criminal defense is dying. It’s awful. It sucks. And you’re hanging on by a thread, if at all.  Yet, most put on their game face, talking themselves up as if they are somehow beating the odds, knocking down the world, making a killing. Nobody wants to tell their brethren that they’re in the same boat, struggling daily to cover the nut and praying that the next phone call isn’t another nutjob or desperate defendant without a dime to his name.

It’s not that there is a shortage of criminal defendants, though crime is significantly down and serious crime even more so.  There is a shortage of criminal defendants who can afford to pay for a lawyer.  Sure, there are  some lawyers who are doing well, but you can count them on your fingers and toes, without resort to dropping trou. And there are a great many criminal defense lawyers, exceptionally good ones, who fight over crumbs these days, because that’s all they can do to survive . . .

[snipping some typical anti-law school commentary...]

The fact is that the vast majority of criminal defense lawyers are starving.  Because of this, lawyers are cannibalizing themselves, stealing cases in the hallway and undercutting each other at every turn.  Websites create the expectation that people can get $1000 of legal representation for $12,97. They teach that lawyers desperately want to give away their advice for free.  The message is lawyers are fungible, or that no one wins anyway, so why bother paying money when you can lose just as well for free.”

I don’t know if the trend that Scott describes is local (NY) or national.  (The students I know in criminal practice are either PDs or too fresh to know the regional market well.)  If it is a national trend, it’s disturbing.  Scott asserts that the decline in the criminal defense bar is unrelated to the decline in crime.  Presumably, it could be related to the overall slowdown in the economy. But the primary mechanism I’d posit for such a relationship would be an increase in the supply of criminals, which isn’t evident in the crime data.  The decline in BigLaw results from outsourcing, client-billing pressure, and digitization.  None of that is present here.  What’s going on?  Is this mostly about the collapse of the more lucrative side of the drug trade? The commodification of practice (driven by internet advertising)?

Knowledgeable and signed comments will be welcome.

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Volume 59, Issue 6 (August 2012)

Volume 59, Issue 6 (August 2012)


Articles

From Private Violence to Mass Incarceration: Thinking Intersectionally About Women, Race, and Social Control Kimberlé W. Crenshaw 1418
Prison, Foster Care, and the Systemic Punishment of Black Mothers Dorothy E. Roberts 1474
Blind Discretion: Girls of Color & Delinquency in the Juvenile Justice System Jyoti Nanda 1502
The New Racially Restrictive Covenant: Race, Welfare, and the Policing of Black Women in Subsidized Housing Priscilla A. Ocen 1540
Justice for Girls: Are We Making Progress? Francine T. Sherman 1584
Engendering Rape Kim Shayo Buchanan 1630
Uncomfortable Places, Close Spaces: Female Correctional Workers’ Sexual Interactions With Men and Boys in Custody Brenda V. Smith 1690
“In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing Rights George Lipsitz 1746


Comments

Unlocking the Gates of Desolation Row Sara Taylor 1810
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United States v. Skinner: Developments in the Surveillance State and a Response

It’s not news to CoOp readers that Fourth Amendment law is in a state of confusion over how to deal with ever-expanding capacities of state agents to collect information about our movements and activities using a range of surveillance technologies.  My colleague David Gray and I have spent lots of time thinking and writing about the fog surrounding this issue in light of United States v. Jones.  So we write this post together — Professor David Gray is my brilliant colleague who has been a guest for us in the past.  So here is what is on our minds:

The Supreme Court avoided a four-square engagement with these issues last term in Jones by rehabilitating a long-forgotten, but not lost, property-based test of Fourth Amendment search.  For most of us, however, the real action in the opinion was in the concurrences, which make clear that five justices are ready to hold that we may have a reasonable expectation of privacy in massive aggregates of data, even if not that is not true for the constituent parts.  The focus of the academic debate after Jones, including a really fascinating session at the Privacy Law Scholars Conference in June, has largely focused on the pros and cons of the “mosaic” theory, which would assess Fourth Amendment interests in quantitative privacy on a case-by-case basis by asking whether law enforcement had gathered too much information on their subject in the course of their investigation.  Justice Alito, writing for himself and three others, appeared to endorse the mosaic theory in Jones, and therefore would have held that law enforcement engaged in a Fourth Amendment search by using a GPS-enabled tracking device to monitor Jones’s movements over public streets for 28 days, generating over 2,000 pages of data along the way.

Before the ink was dry in Jones, Orin Kerr was out with a powerful critique.  Orin’s concerns, which Justice Scalia seems to share, are doctrinal and practical.  Christopher Slobogin has since offered a very thoughtful defense of the mosaic theory, which comes complete with a model statute complete with commentary (take notice Chief Justice Roberts!).  Professor Gray and I just posted an article on SSRN arguing that, by focusing on the mosaic theory, much of the conversation about technology and the Fourth Amendment has gone badly wrong after Jones.  The Sixth Circuit’s opinion in United States v. Skinner confirms the worst of our concerns.  Another nod to Orin Kerr for putting a spotlight on this decision over at the Volokh Conspiracy.

The question put to the court in Skinner was whether the “use of the GPS location information emitted from [Skinner’s] cell phone was a warrantless search that violated the Fourth Amendment . . . .”  Writing for himself and Judge Clay, Judge Rogers held that “Skinner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location” in the same way that “the driver of a getaway car has no expectation of privacy in the particular combination of colors of his car’s paint.”  Because the officers tracking Skinner only did so for three days, Judge Rogers also saw no quantitative privacy interest at stake.

Skinner is confusing in many ways.  The court is not entirely clear on what tracking technology was used, how it was used, which line of Fourth Amendment doctrine it relied upon, or how its holding can be reconciled with Kyllo.  For now, let’s bypass those issues to focus on what we take to be a dangerous implication of Skinner and perhaps the mosaic theory as well.  According to Judge Rogers, none of us has “a reasonable expectation of privacy in the inherent external locatability of a tool that he or she bought.”  That is, there is absolutely no Fourth Amendment prohibition on law enforcement’s using the GPS devices installed in our phone, cars, and computers, or trilateration between cellular towers to track any of us at anytime.  Because there are no real practical limitations on the scope of surveillance that these technologies can achieve, Judge Rogers’s holding licenses law enforcement to track us all of the time.  The mosaic theory might step in if the government tracks any one of us for too long, but it preserves the possibility that, at any given time, any of us or all of us may be subject to close government surveillance.

We think that something has gone terribly wrong if the Fourth Amendment is read as giving license to a surveillance state.  As we argue in our article, programs of broad and indiscriminate surveillance have deleterious effects on our individual development and our collective democratic processes.  These concerns are familiar in the information privacy law context, where we have spent nearly fifty years talking about  dataveillance and digital dossiers, but they have clear footing in the Fourth Amendment as well.  More precisely, we argue that a fundamental purpose of the Fourth Amendment is to serve as a bulwark against the rise of a surveillance state.  It should be read as denying law enforcement officers unfettered access to investigative technologies that are capable of facilitating broad programs of indiscriminate surveillance.  GPS-enabled tracking is pretty clearly one of these technologies, and therefore should be subject to the crucible of Fourth Amendment reasonableness—at least on our technology-centered approach to quantitative privacy.

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Do Deferred Prosecution Agreements Create Third Party Beneficiaries?

In the field of corporate criminal liability, no subject is hotter than deferred prosecution agreements (DPAs).   In these, prosecutors agree with target corporations to defer or refrain from prosecution in exchange for the target admitting allegations and committing to various reforms. Reforms invariably include enhanced internal compliance programs, and sometimes top-level governance changes.   Terms provide that if the government determines that the corporation breached, it can prosecute. Given the admissions, conviction then is almost certain.

Several rationales support these functional settlement agreements. These include avoiding the risk of collateral consequences of corporate convictions (such as customer defection and investor withdraws that could ruin a firm, as happened with Arthur Andersen in 2005).  They may also be valuable alternatives to straight-up criminal convictions or civil regulation when investigations give prosecutors firm-specific information about corporate defects that the agreements can cure.  There are thus both public law enforcement (deterrence) rationales and private corporate rationales (reducing agency costs when managers act against the interests of shareholders).

DPAs are age-old devices but have become popular in the US only the past decade: only a couple dozen were ever used before 2003, but nearly 200 have been formed since.  This summer alone, federal prosecutors around the country have entered into a dozen of them with various corporate targets.  England is now considering whether to follow this American development.

Many open questions exist. For example, suppose a company breaches the agreement, as Wright Medical was alleged to have done this week.  The contracts state the rights of prosecutors clearly–they may proceed with prosecution.  Many contracts, including the Wright Medical deal, are silent on another question: are there any third party beneficiaries as a matter of contract law?  Are shareholders intended third party beneficaries of DPAs?  The issue is the government’s intention in exacting the corporation’s promise.  If the rationale is general deterrence, probably not; but if the rationale is reducing agency costs, probably so.  Any opinions?

 

2

The Vanishing Distinction Between Real-time and Historical Location Data

A congressional inquiry, which recently revealed that cell phone carriers disclose a huge amount of subscriber information to the government, has increased the concern that Big Brother tracks our cell phones. The New York Times reported that, in 2011, carriers responded to 1.3 million law enforcement demands for cell phone subscriber information, including text messages and location information. Because each request can acquire information on multiple people, law enforcement agencies have clearly obtained such information about many more of us than could possibly be worthy of suspicion. Representative Markey, who spearheaded the inquiry, has followed up with a thorough letter to Attorney General Holder that asks how the Justice Department could possibly protect privacy and civil liberties while acquiring such a massive amount of information.

Among many important questions, Representative Markey’s letter asks whether the DOJ continues to legally differentiate between historical (those produced from carrier records) and real-time (those produced after an order is issued) cell site location information and what legal standard the DOJ meets for each (or both). Traditionally, courts have accorded less protection to historical location data, which I have criticized as a matter of Fourth Amendment law in my amicus briefs and in my scholarship. The government’s applications for historical data in the Fifth Circuit case, which is currently considering whether agents seeking historical location data must obtain a warrant, provide additional evidence that the distinction between real-time and historical location data makes no sense.

Some background. Under the current legal rules for location acquisition by law enforcement, which are complex, confusing, and contested, law enforcement agents have generally been permitted to acquire historical location data without establishing probable cause and obtaining a warrant. Instead, they have had to demonstrate that the records are relevant to a law enforcement investigation, which can dramatically widen the scope of an inquiry beyond those actually suspected of criminal activity and yield the large number of disclosures that the recent congressional inquiry revealed. Generally, prospective (real-time) location information has required a higher standard, often a warrant based on probable cause, which has made it more burdensome to acquire and therefore more protected against excessive disclosure.

Some commentators and judges have questioned whether historical location data should be available on an easier to satisfy standard, positing the hypothetical that law enforcement agents could wait just a short amount of time for real-time information to become a record, and then request it under the lower standard. Doing so would clearly be an end run around both the applicable statute (ECPA) and the Fourth Amendment, which arguably accord less protection to historical information because it is stored as an ordinary business record and not because of the fortuity that it is stored for a short period of time.

It turns out that this hypothetical is more than just the product of concerned people’s imagination. The three applications in the Fifth Circuit case requested that stored records be created on an ongoing basis. For example, just after a paragraph that requests “historical cell-site information… for the sixty (60) days prior” to the order, one application requests “For the Target Device, after receipt and storage, records of other information… provided to the United States on a continuous basis contemporaneous with” the start or end of a call, or during a call if that information is available. The other two applications clarify that “after receipt and storage” is “intended to ensure that the information” requested “is first captured and recorded by the provider before being sent.” In other words, the government is asking the carrier to create stored records and then send them on as soon as they are stored.

To be clear, only one of the three applications applied for only a relevance-based court order to obtain the continuously-created stored data. That court order, used for historical data, has never been deemed sufficient for forward-looking data (as the continuously-created data would surely be as it would be generated after the order). The other two applications used a standard less than probable cause but more than just a relevance order. It is not clear if the request for forward-looking data under the historical standard was an inadvertent mistake or an attempt to mislead. But applications in other cases have much more clearly asked for forward-looking prospective data, and didn’t require that data to be momentarily stored. Why would the applications in this case request temporary storage if not at least to encourage the judge considering the application to grant it on a lower standard?

I am optimistic that the DOJ’s response to Representative Markey’s letter will yield important information about current DOJ practices and will further spur reform. In the meantime, the government’s current practice of using this intrusive tool to gather too much information about too many people cries out for formal legal restraint. Congress should enact a law requiring a warrant based on probable cause for all location data. It should not codify a meaningless distinction between historical and real-time data that further confuses judges and encourages manipulative behavior by the government.

18

Is There a Reasonable Expectation of Privacy in Illegal Activity?

My previous blog posts on drug sniffing dogs have flirted with this issue. Commenters seem most inflamed by it. Yet, it is dogma that there is no Fourth Amendment right to privacy in possessing contraband. The rationales animating the Fourth Amendment currently protect those who are ultimately found to possess contraband only as a way to shield the innocents, who do not possess contraband but may have other embarrassing items in their possession. According to the Supreme Court, we protect the guilty only to safeguard the innocent from intrusive government action.

Because the Court has held that there is no reasonable expectation of privacy in contraband, intrusions that are “binary,” or test only for the presence or absence of contraband, do not implicate Fourth Amendment rights. Thus, police officers may use drug sniffing dogs, test white powder for cocaine, or use child pornography detection software to search only for digital contraband without any suspicion justifying their actions. (This does not mean that law enforcement can use any means to do so, and Florida v. Jardines will test how intrusive binary searches can be, but I do not believe that Jardines will overturn the proposition that no suspicion is needed before using a drug sniffing dog in a less intrusive way.)

The Seventh Circuit has even extended this logic to hold that there is no reasonable expectation of privacy in illegal activity, no matter where it occurs. The Court of Appeals in United States v. Brock, 417 F.3d 692 (7th Cir. 2005), allowed a canine sniff at the door to a man’s room once his roommate consented to allow the police access to the home. This would be one way of deciding Florida v. Jardines, although I doubt the Supreme Court will go as far as the Seventh Circuit. If you’re interested in the “contraband exception” to the Fourth Amendment, check out Timothy MacDonnell, Orwellian Ramifications: The Contraband Exception to the Fourth Amendment, 41 U. MEM. L. REV. 299 (2010).

Read More

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Stanford Law Review Online: Regulating Through Habeas

Stanford Law Review

The Stanford Law Review Online has just published a Note by Doug Lieb entitled Regulating Through Habeas: A Bad Incentive for Bad Lawyers?. The author discusses the potential pitfalls in a pending DOJ rule that provides for fast-track review of a state’s death row habeas petitions if the state implements certain sanctions for lawyers found to be legally ineffective:

The most important—and most heavily criticized—provisions of the Antiterrorism and Effective Death Penalty Act restricted federal courts’ ability to hear habeas petitions and grant relief to prisoners. But the 1996 law also included another procedural reform, now tucked away in a less-traveled corner of the federal habeas statute. It enables a state to receive fast-track review of its death row prisoners’ federal habeas petitions if the U.S. Attorney General certifies that the state provides capital prisoners with competent counsel in state postconviction proceedings.

Now, a pending Department of Justice (DOJ) rule sets forth extensive criteria for states’ certification for fast-track review. Piggybacking on a federal statute that does the same, the proposed DOJ rule encourages states to adopt a seemingly commonsense measure to weed out bad lawyers: if an attorney has been found legally ineffective, remove him or her from the list of qualified counsel eligible for appointment. Unfortunately, such removal provisions may do more harm than good by jeopardizing the interests of ineffective lawyers’ former clients. This Note explains why removal provisions can be counterproductive, argues that rewarding the implementation of these provisions with fast-track habeas review is especially unwise, and offers a few recommendations.

He concludes:

The lesson, at a minimum, is that policymakers should be wary of one-off regulatory interventions into indigent defense, considering the hydraulic pressure that a new requirement might exert elsewhere in the system. Leaders within the public defense bar might also wish to think carefully about their expressions of support for ineffective-attorney-removal provisions. And, while some scholars have considered the ethical obligations of predecessor counsel when faced with an ineffectiveness claim, rigorous empirical study of lawyers’ actual responses to allegations of ineffectiveness may be needed to develop sound policy. Do most attorneys actually understand themselves to owe continuing duties to former clients, or do most do what they can to protect their professional reputations against charges of deficient performance? (And are those with the latter attitude more likely to be ineffective in the first place?) The practical effect of regulatory interventions, including removal provisions, turns on the answer to these questions.

None of this is to suggest that it’s in any way acceptable for an ineffective lawyer, let alone an incorrigibly awful one, to represent a capital—or non-capital—defendant or prisoner. The point is the opposite. Even a well-intentioned patchwork of regulation through habeas is no substitute for an adequately funded system that trains, compensates, and screens counsel appropriately. If kicking ineffective lawyers off the list may do more harm than good, the goal should be keep them off the list to begin with.

Read the full article, Regulating Through Habeas: A Bad Incentive for Bad Lawyers? by Doug Lieb, at the Stanford Law Review Online.