Blogger Paul Campos of Inside the Law School Scam is giving up blogging. The message of his blog, and many others, is that American law schools (1) are unjustifiably expensive and saddle their students with huge debts; (2) send graduates into a shrinking job market, thus setting them up for unemployment and financial ruin; and (3) have been trying desperately to conceal these facts for years, using techniques that amount to a 'scam'. According to Campos, the message has been received:
19 months and 499 posts later, it turns out that the core message of this blog – that legal academia is operating on the basis of an unsustainable economic model, which requires most law students to borrow more money to get law degrees than it makes sense for them to borrow, given their career prospects, and that for many years law schools worked hard, wittingly or unwittingly, to hide this increasingly inconvenient truth from both themselves and their potential matriculants – has evolved from a horrible heresy to something close to conventional wisdom
...People have asked me how I can continue to be on a law faculty, given my views. This question – when it isn’t simply a hostile attempt to derail conversation – is based on a misunderstanding. I very much believe in the potential value of higher education. And I believe that legal education can and must be reformed radically. (On one level the most important short-term reforms couldn’t be simpler: the cost of law school attendance must be reduced drastically, and the number of people graduating from law school must be decreased by a significant amount. In the longer term, the American legal system will need to confront whether it is either pedagogically justifiable or financially viable to continue to require the basic law degree to be acquired through postgraduate education).
I found ITLSS consistently witty and brave. And Campos is enough of a scholar to marshal evidence, not mere snark. His very long, very thorough description of the crisis facing American legal education is here.
I've followed this story with interest since I'm in legal education, and I sometimes wonder whether it has relevance to Germany, either because (1) Germany may be facing similar problems; or (2) There will be spill-over effects from the American crisis on the German legal scene.
As to #1, I doubt it. The main difference, of course, is that German law students, like university students in general, either pay no tuition fees or very low ones. One major driver of the sense of crisis in the U.S. is that the average law student graduates with something like $100,000 in debt, but jobs that pay enough to service this debt are few and far between. That is not a problem in Germany. However, I do think that some of the structural changes to the American job market -- outsourcing, temporary contract work, much more price-conscious clients -- could well begin to be seen in Germany.
As to #2, I also think the effect will be marginal, except perhaps that some American law school graduates might relocate abroad, either to find any kind of job or to make a 'fresh start' where debt collectors will find it hard to trace them. Again, though, this doesn't seem very likely. Anyone who comes to Germany or France fresh out of law school will soon face the harsh reality that an American legal education is well-nigh worthless in most European countries. Also, as non-EU citizens, Americans can be legally discriminated against in favor of EU citizens. Nevertheless, I can imagine an increasing number of law graduates -- especially ones who have cultural or personal ties to Europe -- trying to establish themselves across the pond.
What say you, commenters, especially Pageant? By the way, since comments are now moderated, you no longer face the horrible prospect of typing a long comment only to see it magically 'disappeared' because you unknowingly used a spam key-word.
Another bizarre threat served up by the United States federal criminal-justice system:
The shuttered Hump restaurant in Santa Monica and two of its sushi chefs have been indicted by a federal grand jury on charges including selling sei whale meat, an announcement from the U.S. attorney's office in Los Angeles says.
Typhoon Restaurant Inc., the parent company of the Hump, and Kiyoshiro Yamamoto and Susumu Ueda were named in the nine-count indictment. Other charges include conspiracy to import and sell meat from the endangered sei whale and lying to federal investigators.
The Hump closed in 2010 after an associate producer of the documentary "The Cove," which investigated the killing of dolphins in Japan, orchestrated a video sting. The Times reported that two participating activists asked if they could order whale meat as part of an omakase meal and a waitress served eight pieces, according to a federal affidavit. DNA tests confirmed the meat came from a sei whale, which is protected under the Marine Mammal Protection Act. It's illegal to sell any kind of whale meat in the U.S.
If convicted, Yamamoto faces up to 67 years in prison, and Ueda faces a maximum 10-year term. Typhoon would face fines totaling $1.2 million.
Yes, you read that right: 67 years for selling whale meat, conspiracy to sell whale meat (which, in the wonderful world of American criminal justice, is actually a separate crime), and lying to federal investigators. So, a chef sells endangered whale meat once to undercover investigators, and now faces 67 years in prison.
To add some context, the chance of this fellow actually getting a 67-year-sentence is low. A federal judge will do the sentencing, and has discretion to impose a much lower sentence than the theoretical maximum. What's happening here is that prosecutors have stacked up as many separate charges as possible to terrorize this man into cutting a deal. If you were faced with this tactic, you would think as follows: There's probably a 90% chance I'll get a sentence of something like 5 years, a 9 percent chance I'll get no prison time, and a 1% chance of getting a sentence of 50+ years (this just an illustration, federal sentencing law is actually more complex than this).
What would you do to avoid even a slight possibility that the rest of your life will be utterly destroyed? A lot. You would take a deal for, say, 8 years. At least then you can be certain of the outcome. If you hadn't been threatened with 67 years in prison, you might have risked a trial, or at least insisted on a deal for 2 or 3 years in prison. But the prosecution can bludgeon you into throwing several extra years of your life away by threatening you with an insanely long sentence that is, at least, theoretically permissible.
And to think that Americans pride themselves on being rugged individualists with a distrust of government power.
The problem of outdated laws inflicting unpredictable, massive penalties on people who use the Internet in unapproved ways (see Aaron Swartz) is also acute in Germany. Case in point: In 2000, a highly unusual-looking man, seeking attention, went out onto the streets of Berlin to dance in a techno-parade. Another attendee filmed him doing his thing. This is the result:
Notice that there's no attempt to conceal the filming. The filmer, Matthias Fritsch, decided to post the video online, figuring it might amuse other people. Indeed it did: the man in the video became known as the Technoviking, and his moves spawned an Internet subculture. Fritsch even made a modest amount of money from all the YouTube views.
And now, thirteen years later, he faces bankruptcy and jail. The Daily Dot reports:
[Fritsch stated:] "I am being accused for creation and publication of images connected to the Technoviking, therefore infringement of personality rights. They also say I am earning a lot of money by that. They argue that [I] gave him the name Technoviking, create 3D characters, comics and more to constantly increase the popularity in order to market Technoviking and therefore cause damage to the protagonist"
If Fritsch loses, so does the Internet. He'll have to scrub any original content he created that featured the Technoviking's likeness, and he'll be barred from creating new content. Worse, the lawsuit accuses him of creating numerous other derivative works, most of which Fritsch says he never touched....
Failing to do that, Fritsch would face a €250,000 ($334,441 U.S.) fine and up to six months in jail. Fritsch said the lawsuit only includes content he allegedly posted, so no matter the result of the trial, other Technoviking remixes around the Web are safe—for now.
"I can't say how far his intentions go for removing content that is posted by other people," Fritsch said. "It would be a Don Quixote action to try removing Technoviking from the Web."
Fritsch, who still won't reveal the Technoviking's identity despite the lawsuit, said he's not really worried about the trial. He doesn't take credit for the Technoviking character, which he believes was born out of the collaborative creativity of millions of Internet users.
"I am only worried that the judge might not understand contemporary web-culture and therefore judges from an old fashioned perspective," Fritsch said. "Artists are not rich usually and I am one of those artists. To put me in a financial emergency is really something I wouldn't like.
Technoviking's lawyer is almost certainly suing under German Persönlichkeitsrecht, which gives people control over how their own image is disseminated. The most famous case is the so-caller Herrenreiter (g) (dressage rider) decision from 1958, in which a professional horse rider's image was used without his permission in advertisements for a tonic thought to increase male potency. You could also sue for this under the common law, since this is appropriation of someone's unmistakable image without consent or payment to use in advertisements for a consumer product.
However, the common law has a different answer when it comes to people who are voluntarily putting themselves on display in public. In this case, the law generally says that if you volunarily go outside and expose your image to thousands of strangers, you are demonstrating that you don't wish that what you're doing should be kept secret, and therefore your image can be taken and used by others. There is, however, an exception for voyeuristic videos that attempt to reveal parts of your body you would wish to be kept secret (such as upskirt videos). That's obviously not an issue here. Some courts also have an exception when your image is used without your consent for a profit-making enterprise that you certainly would have demanded money for participating in had you known about it.
Under the common law, then the Technoviking video can be legally shared. Technoviking went out into a public festival, where certainly knew he might be filmed, and started dancing. He was sharing his image with thousands of strangers, and obviously enjoyed himself doing so. The artist was not using the Technoviking's image to sell a product, and the money he earned from it was merely incidental to its unexpected success. And it was, of course, money for something he created -- the video of an interesting person dancing on the street.
The idea that this could lead to jail time is an absurd consequences of Germany's outdated privacy and intellectual property laws, which also subject you to hefty fines, believe it or not, if someone else (g) posts a copyrighted picture to your Facebook page. The problem here is uncertainty. Germans are normally obsessed with Rechtssicherheit, the notion that the law must be stable and clear, so that private persons can regulate their affairs in peace. But there's a huge hole in that protection when it comes to Internet users. The persistence of these old, overbroad definitions are a constant background threat that chills Internet freedom. Any of you who have a Facebook account could theoretically face a lawsuit tomorrow for something innocent you shared with your friends years ago. All that needs to happen is for someone to find out about it and contacts one of the many German lawyers who specialize in harassing German internet users with ludicrously exaggerated damages claims for infringements both real and alleged.
This is why I have a soft spot for the Pirate Party, for all their shenanigans. None of the mainstream German parties was giving much thought to these issues before the Pirate Party came along. This was due probably in equal measure to technological ignorance, the inherent conservatism of the German legal system, and effective lobbying by the content industry. The Pirates found resonance because they pointed out that outdated laws were making potential criminals of literally millions of citizens, an absurd state of affairs in a country that claims to be governed by the rule of law. The Pirates, in the best tradition of third parties, forced the mainstream to finally face an issue they'd been all to happy to ignore.
The American criminal justice system stands out not only for the severity of its criminal sentencing, but for the incredible leeway it gives to prosecutors. Prosecutors exercise sole discretion over what charges to file against defendants and what deals to cut with them, if any. There are no formal requirements that prosecutors treat like crimes alike, and no rule against a prosecutor singling out one defendant for an extremely severe sentence to 'set an example'.
Although constitutional rules require prosecutors to turn over exonerating evidence to the defense, it is the prosecutor's own prerogative to decide what evidence must be turned over, and what can be kept secret. Not surprisingly, prosecutors often abuse this prerogative and conceal favorable evidence from the defense. If this fact is discovered at all, it may be only after the defendant has spent years in prison, and it often results in no punishment at all for the prosecutor. This is mainly owing to the fact that prosecutors, as government officials, enjoy immunity for actions they take during the course of duty, and this legal protection is nearly impossible to overcome. In 2011, for instance, the United States Supreme Court ruled that a Louisiana prosecutors who confessed to intentionally suppressing blood testing showing a defendant's innocence -- thereby sending him to death row to wait for execution for 14 years -- could not be held liable in a civil court.
But that's not all. Prosecutors can engage in overcharging: threatening defendants with extra crimes despite weak evidence, in order to force them to accept plea bargains. They can also charge defendants with every single act of illegality and seek consecutive sentences, creating the potential for huge punishments. This is also true if all of the violations were only part of one scheme. For instance, if you ran a scam sending out fraudulent letters, the prosecutor can decide to charge you for every single piece of mail the operation sent out, attaching a penalty to each one. So, for example, if you send out 60 fraudulent letters during your scheme, and the maximum sentence for each letter is 5 years in prison, then there is nothing stopping the prosecution from charging you with 60 separate offenses, and asking for a 5-year consecutive sentence on each one, for a total of 300 years in prison. Although this would raise a few eyebrows, and the judge would be likely to impose a much lighter sentence, there's nothing preventing the prosecution from asking for this insane punishment, and judges will often agree to sentence offenders to extremely long consecutive sentences.
The fact that prosecutors are immune from any effective accountability helps to explain the case of Aaron Swartz, the activists who recently committed suicide while facing prosecution for hacking into a database of academic articles. Glenn Greenwald reports:
The Wall Street Journal reported this week that - two days before the 26-year-old activist killed himself on Friday - federal prosecutors again rejected a plea bargain offer from Swartz's lawyers that would have kept him out of prison. They instead demanded that he "would need to plead guilty to every count" and made clear that "the government would insist on prison time". That made a trial on all 15 felony counts - with the threat of a lengthy prison sentence if convicted - a virtual inevitability.
Just three months ago, [prosecutor Carmen] Ortiz's office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which "carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony", meaning "the sentence could conceivably total 50+ years and [a] fine in the area of $4 million." That meant, as Think Progress documented, that Swartz faced "a more severe prison term than killers, slave dealers and bank robbers".
Swartz's girlfriend, Taren Stinebrickner-Kauffman, told the WSJ that the case had drained all of his money and he could not afford to pay for a trial. At Swartz's funeral in Chicago on Tuesday, his father flatly stated that his son "was killed by the government".
Ortiz and Heymann continue to refuse to speak publicly about what they did in this case - at least officially....
A petition on the White House's website to fire Ortiz quickly exceeded the 25,000 signatures needed to compel a reply, and a similar petition aimed at Heymann has also attracted thousands of signatures, and is likely to gather steam in the wake of revelations that another young hacker committed suicide in 2008 in response to Heymann's pursuit of him (You can [and I hope will] sign both petitions by clicking on those links; the Heymann petition in particular needs more signatures)....
In sum, as Sen Jim Webb courageously put it when he introduced a bill aimed at fundamentally reforming America's penal state, a bill that predictably went nowhere: "America's criminal justice system has deteriorated to the point that it is a national disgrace" and "we are locking up too many people who do not belong in jail." The tragedy of Aaron Swartz's mistreatment can and should be used as a trigger to challenge these oppressive penal policies. As Moynihan wrote: "those outraged by Swartz's suicide and looking to convert their anger into action would be best served by focusing their attention on the brutishness and stupidity of America's criminal justice system."
I have signed both petitions. Of course, Obama is not going to fire the prosecutor for simply pursuing Draconian punishments -- he probably considers that part of her job. And firing one prosecutor doesn't solve any of the systemic problems. But at least it's shone a bit of sunlight on this area. The more I study other criminal justice systems, the more I become aware of how many aspects of the U.S. system are preposterously outdated, inefficient, and/or unjust. There's a German saying: Der als Normalität getarnte Wahnsinn: Insanity disguised as normality. Hmm, that might make a good subtitle.
I'm reading the latest edition of Lawrence Friedman's A History of American Law. It's actually a pleasure to read, which is no mean feat for that sort of book. I'm pretty sure it would also be comprehensible to non-lawyers. Friedman has an eye for the colorful quotation, such as this description of 'The Chinese', from the remarks of John F. Miller during the 1878 constitutional convention in California. See if you can tell what sort of immigration policy the new constitution favored:
[The Chinese] is a sinewy, shriveled human creature, whose muscles are as iron, whose sinews are like thongs, whose nerves are like steel wires, with a stomach case [ed. 'stomach case'!!] lined with brass; a creature who can toil sixteen hours of the twenty-four; who can live and grow fat on the refuse of any American laborer's table.
(p. 263). Actually, they sound pretty handy (unless they become, er, sentient). Where can I get one?
One question I get a lot from students and colleauges is 'why does the United States almost never ratify international treaties?' That's not strictly the case, since the U.S. is happy to ratify trade treaties that open new markets for U.S. firms. But when it comes to virtually any other treaty, the U.S. usually stays out. The reason for this is pretty simple: the U.S. Constitution requires a 2/3 majority of the Senate to vote to approve treaties, and there's almost always a hard core of American isolationists who will never, ever agree to any international treaty not directly related to trade.
Kevin Drum has more on this, occasioned by the most recent treaty to fail before ideological conservatives in the U.S. Senate, including a bonus quote from an American senator talking about killing cats(!):
Today, Republicans blocked ratification of the United Nations Convention on the Rights of Persons with Disabilities, a treaty negotiated by George W. Bush that basically codifies U.S. law as a model for the rest of the world....
Movement conservatives have been paranoid about treaties at least since FDR's treachery capitulation treason agreement with Stalin at Yalta, and for all I know, maybe even long before that. Hell, the Bricker Amendment, which would have dramatically restricted the ability of presidents to negotiate treaties at all, only failed by one vote in 1954, back when memories of Yalta were fresh. Just for laughs, let's compare and contrast 1954 with 2012. Here is Senator Walter George on the Bricker Amendment:
I do not want a president of the U.S. to conclude an executive agreement which will make it unlawful for me to kill a cat in the back alley of my lot at night, and I do not want the President of the U.S. to make a treaty with India which would preclude me from butchering a cow in my own pasture.
Does that sound eerily, tea party-ishly familiar? It should. Here is Senator Jim Inhofe on UNCRPD:
Unelected bureaucratic bodies would implement the treaty and pass so-called recommendations that would be forced upon the United Nations and the U.S....This would especially affect those parents who home-school their children....The unelected foreign bureaucrats, not parents, would decide what is in the best interests of the disabled child, even in the home.
Movement conservatives tend to tolerate trade treaties, but that's about it. They went ballistic over the Panama Canal treaty. They screamed blue murder over the Law of the Sea treaty. They opposed establishment of the International Criminal Court. They've fought pretty much every arms control treaty ever. They don't like treaties, they've never liked treaties, and if there's nothing obviously wrong with one they'll invent a bunch of bizarre conspiracy theories in order to get themselves worked into a frenzy about it.
If you ask me, one more data point for the argument that the U.S. Constitution needs an overhaul.
The Supreme Court of the United States just handed down a peculiar decision. By a vote of 6-3, it refused to decide an Idaho case in which an extremely mentally ill man was denied any chance to lodge an insanity defense and was sentenced to two life prison terms for murder. This result is possible because, 1982, the state of Idaho decided to break with thousands of years of legal tradition (pdf) and completely abolish the insanity defense. In Idaho, since 1982, mentally ill people cannot introduce evidence of their mental illness and are sentenced to precisely the same prison terms as ordinary criminals: as the law states, '[m]ental condition shall not be a defense to any charge of criminal conduct.' Idaho Code §18–207(1).* The courts of Idaho held that the legislature's decision to abolishing the insanity defense was not inconsistent with Constitutional due process
The United States Supreme Court just allowed that decision to stand. This means the other 46 American states who still permit some sort of insanity defense may, if they choose, now abolish it. They probably won't, though. Three Justices of the U.S. Supreme Court dissented from the majority's decision (pdf). And the mere fact that the Supreme Court didn't take this case does not imply any sort of judgment. They still remain free to decide the issue later -- although this case, Delling v. Idaho, was an excellent test case, since Delling was so disturbed that he had to be medicated for a year just to make him competent to stand trial. Nobody disputed that Delling was mentally ill, and that his illness was responsible for his crimes. But under Idaho law, that was irrelevant.
This is the danger of passing legislation based on a single spectacular case. In Germany, talking heads intervene after a spectacular crime and admonish the public that 'we must remain calm and assess the issue rationally without overreacting to a single incident (Einzelfall).' Examples for the skeptical here (g) and here (g). To some, this phrase may smack of elite condescension, but to others, it's a necessary corrective (these categories are hardly mutually exclusive). To understand this issue, you have to look at the date. Idaho passed this law in 1982 -- that is, just after the trial of John Hinckley, the man who attempted to assassinate President Ronald Reagan on 30 March 1981. Hinckley was found not guilty by reason of insanity after evidence was introduced that he had become obsessed with the actress Jodie Foster.
After Hinckley's acquittal, there was a backlash against the very idea of the insanity defense. Politicians and conservative commentators began thumping the tub, claiming that the insanity defense was being abused everywhere to let guilty criminals off the hook. (In fact, it is only invoked in a tiny percentage of American criminal trials, and is successful only in a minority of those). The message resonated with Americans, who thought that huge numbers of criminals were 'getting off' on insanity pleas (yet another example of the gob-smacking political ignorance of many Americans). In the aftermath of the Hinckley trial, many states and the U.S. government narrowed the insanity defense, and three states -- including Idaho -- abolished it altogether. These laws weren' the product of careful reflection or policy analysis -- they were just spasms of opportunism by politicians eager to exploit a passing public mood.
But Idaho politicians, wary of being accused of being 'soft on crime', never changed the law. Which means paranoid schizophrenic Joseph Delling faces life in prison with mental illness. A Human Rights Watch report describes the future he faces:
Without the necessary care, mentally ill prisoners suffer painful symptoms and their conditions can deteriorate. They are afflicted with delusions and hallucinations, debilitating fears, or extreme mood swings. They huddle silently in their cells, mumble incoherently, or yell incessantly. They refuse to obey orders or lash out without apparent provocation. They beat their heads against cell walls, smear themselves with feces, self-mutilate, and commit suicide.
Doing time in prison is hard for everyone. Prisoners struggle to maintain their self-respect and emotional equilibrium in facilities that are typically tense, overcrowded, fraught with the potential for violence, cut off from families and communities, and devoid of opportunities for meaningful education, work, or other productive activities. But life in prison is particularly difficult for prisoners with mental illnesses that impair their thinking, emotional responses, and ability to cope. They are more likely to be exploited and victimized by other prisoners. They are less likely to be able to adhere to the countless formal and informal rules of a strictly regimented life and often have higher rates of rule-breaking than other prisoners.
And this all came about because some long-forgotten, perhaps even long-dead Idaho lawmaker, 30 years ago, decided to score political points by introducing a bill eliminating what had been a pillar of the Anglo-American legal order for hundreds of years. I doubt that these long-ago Idaho lawmakers envisioned that the law would be used in cases such as Delling's. They thought they were sticking it to those clever, big-money defense lawyers and cynical, malingering defendants. But once the law is on the books, it's there forever. Who knows how many other mentally ill people have been sentenced to prison terms in Idaho the past 30 years because of this law?
Delling's story showcases the danger of 'legislating based on a singe case.' It's especially likely to happen in the U.S. in the area of criminal law, since accused (and especially convicted) criminals are about the safest punching bags a populist politician can find. And there's nothing to stop these politicians except for their consciences....
Hey everbody, I will be holding a 'workshop' at the Humboldt University tomorrow at 16:00. The title is Who Writes Criminal Laws? A Comparative Look at the Social and Structural Determinants of Criminal-Justice Policy in Europe, the UK, and the United States. As you might be able to guess by the title, this will be rather academical in nature. Nevertheless, if you're interested, feel free to drop by!
A reader emailed me (thanks!) a link to this excellent piece by Liliana Segura for the Nation on US-European criminal-justice contrasts:
The United States is uniquely punitive when it comes to sentencing compared to much of the rest of the world, whether the crime is murder or drug possession. Putting aside the death penalty, which lands us in dubious international company, in countries with life sentences on the books, prisoners are often eligible for release after a few decades. “Mexico will not extradite defendants who face sentences of life without parole,” the New York Times’s Adam Liptak noted in 2005 (Most of Latin America has no such sentence). “And when Mehmet Ali Agca, the Turkish gunman who tried to kill Pope John Paul II in 1981, was pardoned in 2000, an Italian judge remarked, ‘No one stays 20 years in prison.’ ”
The same article quoted Yale law professor James Q. Whitman, author of a book comparing US sentencing with Europe. “Western Europeans regard 10 or 12 years as an extremely long term, even for offenders sentenced in theory to life,” he said. Today, there are more than 41,000 people serving life without parole in the United States compared to fifty-nine in Australia, forty-one in England and thirty-seven in the Netherlands. That’s according to a study released this spring, which found that we are “in the minority of countries using several sentencing practices, such as life without parole, consecutive sentences, juvenile life without parole, juvenile transfer to adult courts, and successive prosecution of the same defendant by the state and federal government.” In the United States, prison sentences have gotten longer and longer—a sea change that Americans have come to accept relatively quickly (largely because the targets have been people of color). Just a few decades ago in high-incarceration states like Louisiana, lifers were eligible for release in ten and a half years. Today in Louisiana, there is no longer parole for lifers, and thus virtually no hope of release, ever. And when it comes to crimes prosecuted under the War on Drugs, three-strikes sentencing and mandatory minimums have not only sent people away for life for minor drug offenses—an anomaly compared to the rest of the world—they have led to a current reality in which the vast majority of people arrested on nonviolent drug charges plead guilty—whether they are or not—in order to avoid such draconian prison sentences, a decision that can have lifelong implications.
...[T]he notion that a retribution-based system hands out sentences that “fit the crime” is wildly and tragically false if the United States is your guide. In the United States, grandmothers are sentenced to life for first-time drug offenses. Mothers who fire a “warning shot” in self-defense at an abusive husband get twenty years in prison. Teenagers who kill their abusive pimp get sentenced to life without parole. Kids who commit crimes at 14 have been condemned to die in prison—getting raped along the way—with no consideration for their age, mental health or abusive upbringing. People land on death row for failing to anticipate that an accomplice in a crime might kill someone—and people are executed for killings committed by others who then go free. The American model—which Supreme Court Justice Antonin Scalia recently summed up by musing, “I thought that modern penology has abandoned that rehabilitation thing”—is a system rife with injustice.