Black is Back

As a conservative is a liberal with a mortgage, a liberal is a conservative under indictment.  Is an anarchist a libertarian after conviction? There are few things that can change a mind faster than enlightened self-interest, and few who can tell the story better, not to mention get access to major publications, than Conrad Black.

Given that’s got time to write, and an ax to grind, this post in the  National Review has much to say, ripping the heart out of the American legal system.  Like stats?

There are 48 million people in the United States with a “record,” many of them based on ancient DUIs or disorderly behavior decades ago at a fraternity party and other unstigmatizing offenses, but still a severe inconvenience to them when they travel abroad or their names are fed to almost any information system; and millions have had their lives effectively ruined. The U.S. has 5 percent of the world’s population, 25 percent of the world’s incarcerated people, and 50 percent of the world’s lawyers, who invoice almost 10 percent of U.S. GDP (around $1.4 trillion annually). In the mid-1970s, the U.S. had about 650,000 people in mental institutions; today, it has only 50,000. Prisoners cost $40,000 per year to detain, and some states can no longer afford it. The conditions of hundreds of thousands of prisoners are grossly and shamefully inhumane. (My own are not.)

Note that he excludes criminal defense lawyers from the mix, since most don’t invoice.  I’m not sure that was his intention, though, as his experience may be different from others.

Not a stats-type guy?  How about some constitutional scrutiny:


The Fifth, Sixth, and Eighth Amendment rights of assurance against capricious prosecution, due process, no seizure of property without due compensation, an impartial jury, access to counsel, prompt justice, and reasonable bail, don’t exist. The ubiquitous plea bargain is just the wholesale subornation or extortion of inculpatory perjury in exchange for immunities or reduced sentences (often with people who are threatened, although there is no evidence against them). Assets are routinely frozen on the basis of false affidavits in ex parte proceedings to deny defendants the ability to defend themselves. Those who do exercise their constitutional right to a defense receive three times as severe a sentence as those who plead guilty; 95 percent of cases are won by prosecutors, 90 percent of those without trial. The public defenders have no resources to conduct a serious defense and are usually just Judas goats of the prosecutors conducting the defendants to legal destruction.

It’s not entirely clear how he arrives at the “Judas goat” thing, since it’s unlikely he had any personal experience with public defenders, and third party stories are notoriously unreliable, particularly when colored by the fact of conviction.  Nobody likes to be convicted, and it’s hardly uncommon for the convicted defendant to think his lawyer was less than exceptional.

And he’s not particularly kind to prosecutors either.


I have witnessed in the U.S. much sleazy prosecutorial conduct whose authors would have been disbarred in my native jurisdictions of Canada and Britain, and I cannot imagine how the U.S. justice system could have descended to such infamies. The only person in the Stevens outrage who seems to have had any redemptive qualities was Nicholas Marsh, one of the assistant prosecutors in the Stevens case, who committed suicide when the conduct of the prosecutors came to light. Depending on his exact apparent motives, and the sequel to his tragic action, he could play a role analogous to that of the Tunisian street vendor who set off the Arab spring by immolating himself.

There’s nothing like a good self-immolation to demonstrate redemption.  Of course, it’s a one-trick pony, but it’s one hell of a trick.  The upshot is that Black sees the system as morally bankrupt.


The moral soul of America is rotting away and the only defense an individual American has is numbers: The prosecutocracy cannot send more than 1 percent of the entire adult population to prison at any one time, if only for budgetary reasons.

The post is great reading (you’ve got to love “prosecutocracy”), something to love and hate for everyone, and mostly, a remarkable view into what becomes of an exceptionally erudite billionaire media mogul when he finds out the government isn’t really his friend.  So you’ll know next time you defend one.

H/T Doug Berman

3 comments on “Black is Back

  1. AH

    Conrad Black is right.

    In the state courts,the judge might impose a trial tax of 20-50% more jail if you loose a trial. Or he might not. I’ve seen judges impose no trial tax when the defense had a meritorious defense that, while not enough to reach reasonable doubt, was not frivolous. I”ve seen state judges ambivalent about finding someone guilty and reward him with a very minimal sentence.

    Federal criminal court is a disgrace. The trial tax is written into the sentencing guidelines and can be numerous times the length of a plea. If the district judge does not impose the trial tax, the appellate court will. When you can threaten anyone with 5x the jail if they dare assert any rights, constitutional rights are an illusion. Since the government can do this to any person whom you have contact with, they can easily manufacture all kinds of testimony against you.

  2. SHG

    No doubt Conrad Black will sleep better tonight in his bunk knowing that you, with your vast breadth of experience, agree with him. 

  3. senpai71

    On a side note, there is a great article about Mr. Black (or is that Lord Conrad?) in the October issue of Vanity Fair. The interview sections also show him to be smart and erudite. Also possibly not as guilty as one might think.

    Not that I’m a Black fan, but it’s worth a read.

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