Conrad Black’s American sentence – just or unjust? Two views

Lord Black has contributed much to conservatism, Canada and the world. Economist Pierre Lemieux and lawyer Bob Tarantino debate his recent re-sentencing in Chicago…

 

Pierre Lemieux: The Irony of Conrad Black’s Persecution

I met Conrad Black twice. The first time was at George Jonas’ birthday party in mid-2005. Hosted by Black’s friend and lawyer Eddie Greenspan, it was a very enjoyable event in a very civilized place. Cigarettes were available on all tables, and I was invited to smoke my cigar in the house. The second time, later that same year, was two days before Conrad Black was indicted in Chicago. I had invited him to a lunch meeting of my Freedom Club, a Montréal salon I created with my late friend Bob Bexon.

Black and I are very different persons. He is – or was – a rich international jet setter, and what I would call, with due respect for a friend, a somewhat politically naïve conservative. I am a poor libertarian author who views politics with no romance (to paraphrase James Buchanan, the Nobel prize-winning economist).

During our conversation, Black claimed the United Kingdom and the United States were free countries. I think America is the least un-free country in the word (at least for somebody with my own personal preferences); yet I argued and would still argue, that neither America nor England can be called really free anymore.

Ironically, Conrad Black admires Franklin D. Roosevelt, who tightened the first bolts in the implacable machine that was to send Black to jail three quarters of a century later. The Securities and Exchange Commission (SEC), a creature of FDR, was an early and crucial actor in what has become the persecution of Conrad Black.

Like Dr. Jekyll and Mr. Hyde, Black had a dual political personality. On the one hand, he congregated with many liberticidal establishment figures, the sort of people who meet at Davos or the Trilateral Commission and conspire for increased state power to social engineer our lives. In 2001, the British government made him Lord Black of Crossharbour.

On the other hand, Lord Black gave a refreshing libertarian orientation to the newspapers he owned and built. It was under his leadership in 2001 that Britain’s Daily Telegraph launched its “Free Country” editorial series with an extraordinary piece by Charles Moore. That piece ended with, “The Labour Government’s Queen’s Speech is a shopping list of attacks on our liberties. Libertad o muerte!” Future historians will remember.

Everything I have seen and read suggests that, as he has himself claimed for half a dozen years, Conrad Black is innocent of the crimes he was charged with – and “crimes” should be put in quotes.

The case, no doubt, is complicated, but it started with a contractual disagreement with some investors, the sort of thing that should have been settled in civil courts. Instead, the SEC and some little prosecutors in Chicago unleashed all the power and resources of Leviathan against the international businessman.

They did not charge him with murder, assault, theft, or any old-fashioned fraud, but with vague crimes that did not exist a few decades ago, and to which they added obstruction of justice. The laws are now so numerous and complex that little room is left for contracts between sophisticated financiers – “capitalist acts between consenting adults”, as philosopher Robert Nozick would have said. Witness the “honest services” theory, which was pared down by the Supreme Court as Black sat in jail, cancelling two of the four charges under which he had been found guilty.

The author of the Federalist Papers # 62 (Hamilton or Madison) saw the danger of such a proliferation of made-up laws: “The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

In our countries, the criminal justice system evolved as a means to protect individual liberty against violent criminals, real thugs, and obvious thieves. Plenty of safeguards were built in so as to prevent the system from persecuting innocents and becoming a simple tool of the state. These safeguards have continuously eroded during the 20th century.

Institutions have their logic, and we end with up a criminal justice system that regularly throws the full power of the state – and God knows how powerful it has become – against individuals whose “crimes” are contractual glitches, or are simply generated by changing interpretations of complex and mutable laws. Conrad Black is one (ironical) example among many. It could happen to you, too.

 

Bob Tarantino: Lord Black’s sentence indicts Canada, not America

Conrad Black’s June 24 re-sentencing by United States federal judge Amy St. Eve (his original 78-month sentence was reduced to 42 months which leaves him with 13 more months to serve) provides an opportunity to reflect on many aspects of Conrad Black’s ordeals in the U.S. criminal courts.

One could query why he chose as his lead defence counsel a Canadian lawyer who had never argued before a Chicago jury or in a U.S. federal court (and needed special dispensation in order to do so). One might wonder why he elected to show up at all in U.S. courts to contest the charges. (Consider Garth Drabinsky, who, faced with U.S. federal fraud and conspiracy charges, has elected not to travel to the United States and has spent more than a decade fighting extradition). In addition, one may even revisit the advisability of ever taking a company public in the American capital markets.

But for Canadians, a more productive approach would be to assess what Black’s treatment says about the Canadian criminal justice system. Two aspects of Black’s story have particular resonance: the speed with which his charges have been handled and the severity of punishment.

Having mentioned Drabinsky, the former Livent executive’s experience offers an instructive comparison. Drabinsky, charged with fraud by the RCMP in 2002, still walks the streets of Toronto a free man; the Ontario courts have yet to hear arguments in his appeal of convictions handed down in 2009.

Black, charged in 2005, three years after Drabinsky, not only had his appeals heard and all the way up to the U.S. Supreme Court; he also had two separate appeals assessed by the 7th Circuit Court of Appeals, served 29 months behind bars and faced re-sentencing. Were the Canadian legal establishment capable of shame, it would avert its eyes from comparatively swifter decision-making down south. Instead, it mostly seems content to purse its lips at the unseemly efficiency of its American brethren.

Some commentators, even those not historically disposed to sympathy with Black or his views, have called his punishment by the U.S. courts barbaric and excessive. That is a grave charge which bears consideration. Upon inspection, it holds little water.

Many of Black’s earlier convictions were set aside by the U.S. Supreme Court but the 7th Circuit Court of Appeals concluded that, because of payments made in exchange for a “ridiculous” (the Court’s word) agreement not to “compete” against a company that had been sold, and because Black removed boxes from his offices while being investigated by a U.S. grand jury and the U.S. Securities and Exchange Commission, Black remains guilty of obstruction of justice and mail fraud. Neither of those charges, but particularly the former, is innocuous.

The message of Black’s sentence is this: whatever else one might say about his convictions, Americans take their criminal laws seriously, meaning they also take violations of those laws seriously. In the context of Canadian sentencing for criminal convictions, viewing the measure of justice levied by a U.S. court is almost refreshing.

“It’s a very serious crime”, said Judge St. Eve, of the charges of which Black remains convicted (according to the Globe and Mail, even Black conceded in his June 24 statements to the court that a reasonable person could have concluded he was guilty).

The obstruction of justice charge carried a maximum penalty of 20 years; the mail fraud charge could have resulted in more than 30 years behind bars. In that context, three-and-a-half years for crimes which a jury and three different levels of court remain persuaded Black committed seems, if not just, at least hardly “barbaric”.

At the end, the remarkably plain-spoken verdict of Judge St. Eve remained: Black was given the sentence because he broke the law, and those who break the law deserve to be punished. They deserve to be punished not because punishing them will rehabilitate them or because it will lower crime rates; they deserve a consequence because punishment is the proper treatment for those who break the law.

This notion of desert, which forms such a strong strand of contemporary U.S. sentencing, particularly at the federal level, is so absent from Canada’s public discourse about crime that Black’s punishment, and its justification, was literally incredible to some Canadians.

The discrepancy between how Canada and the United States treat crime has long been an undercurrent in both the media coverage of Black’s travails and any sober assessment of them.

Canada’s comparative leniency towards convicted criminals, particularly white collar criminals, sometimes seemed in danger of being turned, absurdly, into a prideful boast in Canadian coverage of his trials: why, he could have killed someone here and not been faced with as much jail time!

Our commentariat is so unfamiliar with the notion of just punishment that many members of it fail to realize the fact that Canadian child rapists, killer drunk drivers and violent gang members often spend less time in prison than will Conrad Black is not something of which to be proud. That Black will spend more time behind bars than some serious Canadian criminals is not an indictment of the United States, but of Canada.

One might, out of personal affection for the man or ideological affinity with him (both of which I share), deplore the sentence he received. But it would be a mistake to think his punishment is, in any meaningful sense, unjust or unfair. True, it may be incommensurate with what he would have received in Canada, but that is hardly a condemnation of it.

A 2007 article in Toronto Life written by Peter Newman included a quote from Black (purportedly uttered in the early 1980s, after Black had survived an earlier run-in with the SEC) which offers a fitting coda to the entire affair: “For years I wondered what the difference between Canada and the United States really was…. Now I know. This is a very gentle place, and that’s a real hard league down there.” Indeed.

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