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University of Maine School of Law




This contribution to a symposium on post-conviction litigation argues that the lack of properly-incentivized counsel is a primary problem with our failing system of habeas litigation. The lack of counsel causes a great flood of frivolous petitions by pro se prisoners, while also preventing prisoners with meritorious claims from getting relief. The lack of counsel, and more fundamentally, the lack of funding therefor, thus perpetuates the problem of incarceration waste. Government-funded contingent compensation of post-conviction counsel may be the most promising way to help courts identify the bona fide cases deserving of relief, providing more accurate justice and saving money on net.

In Part I, I lay out the problem of incarceration waste, identifying the types of prisoners who should be released even under current law and foreseeable changes thereto. I also show that, without a constitutional or statutory right to counsel, even those prisoners that are being wastefully incarcerated are unable to persuasively reveal that status to their captors.

In Part II, I present a proposal for rational governments to pay post-conviction counsel, but do so through a contingent fee system that would incentivize the attorneys to identify such prisoners and cogently present their cases to prosecutors and courts. Such a contingent funding system would be more politically feasible, since it does not shower money upon prisoners who deserve to be there, and it creates the proper incentives for attorneys to provide a screening function for the most meritorious cases.

In Part III, I identify other structural and doctrinal impediments to governments achieving a rational policy for reducing incarceration waste, and suggest that they be reconsidered through this lens. I conclude that, although government-paid contingent compensation of post-conviction counsel may be a useful way to get representation for those prisoners that have the most meritorious claims, and to save some money for governments on the margins, it is very far from a solution to the overwhelming problem of mass incarceration.

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