Apologia pro vita sua

17 November 2012

9:00 AM

17 November 2012

9:00 AM

A Matter of Principle Conrad Black

Biteback, pp.508, £14.99

Any fair-minded person who has looked into the matter knows that Conrad Black was wrongly convicted. Indeed under English law he would not have been prosecuted at all, I believe, and had he been so, the judge would have thrown the case out on the first day on the grounds that the pre-trial publicity had hopelessly prejudiced the case. He would then have jailed some of the hostile commentators until they had purged their contempt. However, it is just as well that Black has decided to describe exactly how and why he was wrongly convicted.

He does so in fascinating detail, and in language which is always lively and sometimes achieves a kind of wild distinction. He has a genuine gift — almost a genius — for multisyllabic abuse. He indulges this Swiftean propensity too often and too brutally — it is arguable that if he had not lambasted his critics quite so ruthlessly he would not have got into serious legal trouble in the first place. But no one can deny  that this is a hugely captivating account of a monstrous miscarriage of justice, and very funny in places. It also has something of the same forensic appeal as Emile Zola’s diatribe J’accuse about the Dreyfus case. At £14.99 it is extraordinarily good value.

In addition to Black’s understand-able desire to set the record straight in his own case, the book has the more important public object of exposing the faults in the American judicial system, which make such a miscarriage possible. I had for some years been worried about the deterioration in the American process of criminal law, and I am gratified, and also profoundly disturbed, to find my misgivings confirmed by this account. The process of decay seems to have begun in the 1970s, but it has reached the point where it now constitutes the most radical weakness in the entire American system and one which must be addressed as a matter of urgency.

The fault can be summed up in a sentence: America’s criminal courts now insist on convictions at the expense of any other consideration, above all of justice. They are more like a court martial than a civilian establishment of law. The presumption of innocence has been abandoned. I recall, during my military service, a senior provost martial telling me: ‘If a soldier is court-martialled one must assume he is guilty, otherwise he would not have been charged in the first place.’ That is contrary to all the principles of English justice but it now approximates to the approach of the American prosecuting authorities. The assumption of guilt is sanctified in law by the grotesquely unjust plea-bargaining process, which saves the accused from total financial ruin by forcing him to plead guilty to some of the crimes with which he is charged, however innocent he or she may be. Plea-bargaining in turn leads to a multiplicity of indictments by prosecutors, which adds a judicial to the financial compulsion of the innocent to bargain.


Hence the American prosecution practices are what the law calls ‘a derogation from honest service’. The US prosecution service, in heedless pursuit of convictions, does what it wants and prosecutes whoever it wishes for as long as it likes. Thus, over 90 per cent of prosecutions are successful, a higher proportion than in either Putin’s Russia or Communist China. America, as Black puts it, has become a ‘prosecut-ocracy’.

That being so, it has also necessarily become what he calls a ‘carceral state’, putting behind bars, often for many years, a wholly unacceptable proportion of its own citizens: 750,000 are sent to prison every year, and the number is rising. Over 47 million Americans now have a criminal record. The gap between the United States and other civilised countries has widened enormously in recent years in this respect. The US has five times the population of the United Kingdom but 40 times the number in prison. This fact alone ought to invalidate the monstrously inequable extradition treaty between Britain and the States. It is quite obvious that a person we extradite to America cannot expect the level of justice we take for granted here.

There are other horrifying consequences. For every black who manages to get to college, the state sends three to jail invalidating all the expensive attempts to raise the status of poor minorities. It costs the state $40,000 a year to keep a person in prison, so incarceration alone has rocketed to $250 billion a year. The principal reason for California’s collapse economically is the soaring cost of her criminal and penitentiary system.

The ‘military-industrial complex’ to which Eisenhower drew striking attention in his valedictory address has now been joined by a penitentiary industrial complex, which gives building prisons priority over hospitals and schools. The prison-building lobby is now one of the most powerful in America, and appeals to government by arguing quite cynically that prisons reduce the unemployment figures by 2.5 million a year, and provide jobs for 500,000 prison wardens.

But all this has to be paid for by the taxpayers. This is in addition to the $1 trillion a year the US legal system costs to provide good livings to nearly 50 per cent of the world’s lawyers, who live in the US.

Conrad Black lays bare these ugly facts, and a great deal more, in his account. It should be widely read, especially by the politicians who can influence the extradition arrangements with America. In the process of justifying his business career, and refuting the charges brought against him, Black has written an important book and performed an invaluable public service.


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Show comments
  • JEB

    I love Paul Johnson; I think the “honest services” law is a bad one; I think that U.S. prosecutors have too much power and too little accountability; and I think that Conrad Black probably shouldn’t have been imprisoned. However, Mr. Johnson’s review does not support those opinions. His claim that “[t]he principal reason for California’s collapse economically is the soaring cost of her criminal and penitentiary system” is so obviously inferior to ones like, “The principal reason for California’s collapse economically is its long-term loss of manufacturing jobs,” “. . . is the long-term net emigration of educated, skilled, and taxpaying residents,” and “. . . is its burdensome regulations on businesses” that the reader is forced to conclude that Mr. Johnson has either absolutely no idea what he’s writing about (which is unlikely), or that he is so biased in favor of Mr. Black that he shouldn’t have reviewed this book. (Other passages that discredit Mr. Johnson include: “America’s criminal courts now insist on convictions at the expense of any other consideration, above all of justice. They are more like a court martial than a civilian establishment of law. The presumption of innocence has been abandoned[]” (oh calm down); and “The prison-building lobby is now one of the most powerful in America, and appeals to government by arguing quite cynically that prisons reduce the unemployment figures by 2.5 million a year, and provide jobs for 500,000 prison wardens[]” (but, actually, the prison population has been declining in the US for several years and the rate of decline is accelerating).).

  • Donald Neill

    As a Canadian who has followed Conrad Black’s case, and as a former military officer, I take exception only to Mr. Johnson’s denigration of courts-martial. I have served as a court martial officer on six separate occasions, and have invariably been impressed at the wisdom and sagacity displayed by senior military legal officers sitting in sole judgement. In the judicially streamlined atmosphere, there is far more scope for common sense, as evidenced by the ages-old military jest: “March the guilty ba$tard in!” This is not meant to imply presumption of guilt on the part of the accused – rather, that the CM would never have been convened in the first place if there were not sufficient objective evidence to suggest the likelihood of conviction. The reason courts-martial have a reasonably high conviction rate is because of the principle that no one is sent before a court martial unless the evidence is overwhelming. And even then, many members are acquitted due to extenuating circumstances, or evidence previously unavailable. And as with the Mikado, there is a more conscionable effort to “let the punishment fit the crime”, rather than tailoring it, as appears to have happened in Mr. Black’s case, on the basis of the identity and public profile of, and the judge’s animus for, the accused.
    Had I found myself in Lord Black’s pricey brogues and been given the choice between risking the US judicial system and a trial before a military court martial judge, I would have unhesitatingly chosen the latter. As a student of history, I suspect he would have done the same.

  • Winston Smith


  • vb

    “For every black who manages to get to college, the state sends three to jail…”

    I don’t think you can lay the blame for this totally on the justice system. You could also consider the number of college students who have to take remedial courses in their first year. This seems to indicate that the education system might be involved. I am not ready to leave the people who push things like gangsta rap off the hook either.

  • bill

    When California voted on legalizing marijuana in 2010 the top two funders of the no vote were the booze distributors and the prison guard union. They understand what even Mr. Johnson doesn’t: America’s horrific’justice’ system is driven by drug prohibition.

  • OldFan

    Interestingly enough, courts-martial have additional safeguards for the accused that civilian trials lack. The UCMJ requires a unique procedure prior to the formal levying of charges: an Article 32 Investigation. Conducted by a serving officer (not a lawyer), this process is intended to assure the the Court-Martial Convening Authority (usually the first General officer in the chain of command in peacetime, or the Brigade Commander in the field) that there really is a case here. This officer ( usually a dashing young Captain like I was in ’77) gets a complete written set of the applicable law, thee Elements of Proof for each potential charge and access to ALL current evidence. His task is to determine if there is enough evidence to charge the accused by filing out a rather detailed report and he has full authority to interview all witnesses. The Convening Authority takes that report and he decides if the courts-martial goes forth. Since defense counsels make much of generals neglecting to follow the recommendations of the Article 32 investigation, they are generally the determining factor. Military lawyers, unlike the ones shown on TV and that ridiculous movie with Jack Nicholson, are all under separate chains of command – they do not come under the Convening Authority. However, they do act on his direction, i.e. they do not decide who gets prosecuted.

    BTW, all the Courts-Martial I sat on were slam-dunk convictions, except the third one where the Guilty Bastard had a good alibi, his defense counsel knew what she was doing, and the prosecution thoroughly botched it. We were all strict upholders of the rules after all, so he walked. We had some words for the idiot that did the Article 32 – that mess should not have gone to trial. Of course, members of the Courts-Martial Board all had real jobs, so they were less than keen to waste their time.

    The current situation on prosecutions is an example of the disadvantages of professionalism – the goals of the professionals conflict with the needs of the population.

  • Lavaux

    First things first: Politics perverts everything in American government in every branch of government. If the public official is paid by the taxpayers, then he is political, just as Chief Justice John Roberts recently demonstrated when he issued a political judgment to avoid entangling the Supreme Court in politics. I kid you not. Worse, American politics are self-destructive in that at any given time, they are either partially or wholly at variance with the principles upon which they were founded.

    Second, prosecutors always hold the best cards in plea bargaining. There’s no getting around this. Either win at trial or bargain down the charge and sentence. Only those with something much more to lose than the bargained-for sentence will go to trial. This is not so much injustice as the skewing of market rules in favor of the sellers of plea bargains.

    Finally, criminalizing vice is a consequence of recognizing and codifying the virtuous society in law. Drug possession, use and distribution would not be illegal if most voters thought it morally inconsequential to do the same. What most voters do not consider and what most politicians do not advise is the trade-offs accruing to a society who believes it should live better than it is willing to live.

  • -dh

    Wonderful review!

  • jonah stiffhausen

    This prosecutocracy is happening down under too. The inevitable result of every street corner parrot having a “law degree” and an ever burgeoning state. We now lock up parents who object to the state stealing their children. We also deny them due process and force guilty pleas too. All a bit of a giggle.