× You have 2 more free articles available this month. Subscribe today.
Interview with Conrad Black, Former Federal Prisoner and Millionaire Media Magnate
Conrad Black, born in Canada, is a member of the British House of Lords who controlled one of the largest newspaper publishing firms in the world, Hollinger International, Inc.
He was prosecuted in the United States in 2005 for defrauding Hollinger of $60 million by allegedly diverting corporate funds to his own use. Convicted of three counts of fraud and one count of obstruction of justice in July 2007, and sentenced to 78 months in prison plus $6.1 million in restitution, he appealed his case all the way to the U.S. Supreme Court. The Court ruled in Black’s favor, limiting the scope of the “honest services” fraud statute in a June 24, 2010 ruling. See: Black v. United States, 130 S.Ct. 2963 (2010), citing Skilling v. United States, 130 S.Ct. 2896 (2010).
Following remand, Lord Black was resentenced to 42 months after two of the fraud charges were dismissed by the Seventh Circuit Court of Appeals; the remaining fraud charge related to the misappropriation of $285,000 in company funds. He was released from federal prison on May 4, 2012 after serving just over 36 months. During and after his incarceration he wrote numerous articles concerning injustices in the U.S. criminal justice system, as well as a memoir, A Matter of Principle. He has denied wrongdoing and maintained that his prosecution was a miscarriage of justice.
PLN editor Paul Wright interviewed Conrad Black in New York City on August 26, 2011 while he was free on bail following the Supreme Court’s decision, before returning to prison to complete his sentence. The following is an abbreviated transcript of that interview; Black has since returned to Canada on a temporary resident permit.
* * *
PAUL WRIGHT: So, Conrad, at one point you were the third biggest media owner in the world with an estimated net worth over $400 million, homes in London, Toronto, New York City and Palm Beach. How did you get ensnared in the American criminal justice system?
CONRAD BLACK: It was the third largest circulation newspaper group in the western world....
CB: Not overall media. It was a New York Stock Exchange listed company, the senior public company, it was an American company, so I was in the American jurisdiction.... [U]nfortunately one of my associates had done a few bad things, some really very sleazy things, of which I was the principle victim, and when that was discovered he rolled over and said in the manner of the American plea bargain, “well I can get you the big fish if you can get me an easier ride,” and that’s what happened.
PW: I think in the American criminal justice system some criminal defense lawyers say that the secret to being a successful criminal is always commit a crime with a more important person.
CB: Yes, at least with a more important person around so you purport to drag them into it, anyway.
PW: Ultimately, you were convicted in Chicago. How long were you in prison and where, and what was it like for you?
CB: Well, there were 17 counts and they didn’t proceed with four, ultimately 13 went to the jury, 9 were acquittals, we lost those 4 counts, or I did, some of my co-defendants lost 3 counts and I lost four. I was sent to the Coleman Low Security Prison in Florida, where I resided for 29 months and I was released on bail. The U.S. Supreme Court unanimously vacated those four counts. Right from the start, we thought it was a sadistic act of the appellate court panel chairman, the former chief judge of the Court of Appeals....
PW: Is that [Seventh Circuit] Judge Posner?
CB: Posner, yeah, who conducted the most abominable farce of an appeal hearing I’ve ever heard. I got the audio, I was in prison at the time, but I got the audio and I read the transcript and my counsel is the longest-serving deputy solicitor general of this country, Andy Frey, a well regarded man, and he would not let him finish a sentence. He interrupted him all the time, nobody could actually make an argument. Posner was so obnoxious, but he was overturned unanimously by the Supreme Court.... [T]he trial judge did the minimum she could while still preserving fig leaf validity for this farcical proceeding, and so I went back so serve [another] 7.5 months.
That’s still a long way short of what I was sentenced to.
And keep in mind they were seeking life in prison and $140 million, and initially alleging that I had stolen $500 million. [After remand] it’s now that I had allegedly improperly received $285,000, notwithstanding that was approved by the executive committee and ratified by the board of directors.
PW: And when it’s all said and done at this point, you achieve a landmark Supreme Court decision that invalidated the honest services fraud statute under which, do you know how many people were convicted of that statute before you struck it down?
CB: Oh, at least 500-600 I’m sure Paul ... and it was one of those catchments where they could catch anybody, like obstruction of justice.
PW: Yes, well, I think there’s the comment about prosecutors using vague laws to ensnare the unwary and this seems to be one of those classic laws where they did just that. So basically, at the end of the day, they start out alleging theft at over $500 million [and] when all is said and done, you have one conviction in place, and ... you served roughly 3 years in prison for....
CB: Three years, when they were going for life and I’ll be out of pocket $600,000 when they were going for $140 million. Now the fact is I wasn’t guilty of anything, but given the correlation of forces between the U.S. government and Conrad Black, I’m glad....
PW: Yeah, that is pretty good. One of the things too, though, is obviously you lost your liberty for three years, this has been a tremendous financial hardship and ostensibly this is all done on behalf of the shareholders of the company. Where is Hollinger today?
CB: They ruined it. The court-appointed directors and court-approved directors and officers vaporized $2 billion of shareholder value, and the counsel of the special committee, the chief sponsor of the prosecution, he and his chums pocketed $300 million for themselves, while they wiped out $2 billion of shareholder value.
PW: So you spent $30 million on your defense, and at the end of the day, you still wind up going to prison for 3 years. I think one of the wags said ... the American criminal justice system has the best justice system money can buy. What’s one of the downsides of being a wealthy and well-known criminal defendant in the United States?
CB: Well, you’re an easier target. But I have to say in the first place, if all my assets had been in the United States my money wouldn’t have done me any good. They freeze it anyway. They make spurious allegations of ill-gotten gains.
PW: And this is [in] the context, too, that the United States purports to have due process protections....
CB: That’s a fraud. This country, in my opinion no serious country should have an extradition treaty with the United States, it’s not a society of laws in criminal matters.... Now what I was going to say was having the ability to get the money to pay for lawyers is a distinct advantage, no matter how famous you are or how much they go after you – and I am not even that famous in the U.S. and indeed I’m not that rich either.... But by the standards of “rich” in this country....
PW: The Bill Gates, the Warren Buffets....
CB: It wasn’t 1% of what they have. And I don’t begrudge that, I never held myself as a specially wealthy man – by the way, the specially irritating and disconcerting [thing] to my tormentors was that I held on to a lot more of the money that I had than they thought I could. But if you don’t really have a lot of resources, and you would know this, Paul, they run you out of money right away. The lawyers in this country ... all know the prosecutors better than they know their client and they all know it’s just theater. Now there are a few very good ones, very good and very expensive, who genuinely detest the prosecutors and fight like tigers for the client but you got to pay them at least $10 million. And that’s not accessible to other than very wealthy people, I mean comparably wealthy, and so the answer is you’re better to have money than not, but if you’re famous it’s a negative because they’ll exploit that....
PW: Before going to prison you counted prime ministers, former presidents, generals, bishops and many other prominent politicians as your friends and colleagues. Once the prosecution started and you became targeted by the criminal justice system of this country, how many of them stuck around? From the media accounts that I’ve read, your wife Barbara was generally the only person in court for your trial and sentencing.
CB: I didn’t ask any one of them to come to the trial. That’s no criterion, I didn’t ask anyone to do that. By the way my daughter attended every session and my sons both came to a lot but they had jobs they couldn’t leave for indefinite times ... but actually a number of my friends did come from time to time but I never asked for that. I would say 80% of the people that I actually regarded as friends, including some quite prominent people, responded well....
PW: As soon as you’re going to prison you find out who your real friends are.
CB: What I did find as a compensation, a very substantial compensation for the disappointments that occurred with people from whom I expected better who scurried just out the back door into the tall grass, was, right from the start, there was a significant number of total strangers who followed the case closely and who were total supporters. And that number grew and grew. And where I was, it was one of the facilities that had email on sort of the experimental basis. I think it’s widespread in the BOP now, and you were allowed 30 email connections, but there was no limit to the number of emails you could send or receive in a day. And indeed that was all profit to them, so they liked it. And correspondence with me was mainly through my office. So I would often get 200 emails a day, and most of them forwarded from my office....
PW: And people were generally supportive?
CB: 99% supportive and the numbers of them steadily grew, and if I may put it this way, the intellectual quality of the readers increased. In early stages, a lot of them were clearly nice people and good people, but not particularly legally worded people, but by the end I was getting a great many letters from lawyers and some from judges. And some from former prosecutors – I didn’t get any from active prosecutors – and they were overwhelmingly supportive. And that, especially when you were defamed as I was and attacked savagely as I was for as long as I was, that kind of thing is very, very, very encouraging, very encouraging. I often felt that it was really a blessing that I wasn’t in that era where you had almost no contact with the outside world other than the visitors you could have.
PW: They do everything they can to further alienate and isolate prisoners, and there is a reason that my litigation forte is First Amendment and free speech issues. Prison censorship is my big thing....
CB: Can you, I know you’re asking the questions here, but do you know why in that case they went ahead with the email [in federal prisons] because that has hence reduced the isolation of prisoners?
PW: I’m not sure, I think that trend toward the email thing is they’re seeing it as a further profit center, like prison telephones that they can further monetize....
CB: So what they should do, if they had just a modicum of intelligence – but of course if they had a modicum of intelligence they wouldn’t be at the BOP, it’s unskilled labor right to the top – but what they would do is have more phones, longer hours for the phones, more email machines, longer times you’re allowed. You can only do an hour at a time, and I understand that because there are other guys waiting, and you have to give everyone a chance.... [S]o for 140 people you have four email machines and three telephones.
PW: Most state prison systems don’t allow email.
CB: I’ve heard the state prison systems, at least in some states are utterly shocking, I mean I don’t think the federal prisons are anything to write home about....
PW: And no they aren’t, some of the federal prisons are really....
CB: The higher security ones are very rough, aren’t they?
PW: Yeah, they are. In Prison Legal News we report extensively on the violence, medical neglect and everything else.
CB: When I came out after 29 months [on bail after the U.S. Supreme Court ruling], I went for extensive testing and extensive dental work. I never went to the dentist there because all they did was extract teeth and I wasn’t interested in that, and I didn’t get a toothache that required it. In 2.5 years everyone’s got to go to the dentist, and at my age you do, otherwise there will be problems. For example, fortunately it was very early stage, I had a melanoma on my face, it was identified right away as suspicious and authenticated as malignant; in fact, it was very small by biopsy and it was removed with no danger. But if I had served my full sentence I would’ve had a serious problem, and in my opinion there is no chance that those nincompoops would have recognized it, or if they did they wouldn’t have cared.
PW: Yeah, and unfortunately that’s rather common.
CB: I found that the paramedics there were quite nice people, most of them. And the doctor that I actually saw twice a year, while he could stand a lesson in charm school, was not, I thought, a bad man, and they had an outside opthamologist come in who seemed to be quite capable and civilized. But the fact is, you would sit all day waiting for something and they would misdiagnose. There were several cases where they shortened people’s lives by their negligence. I mean, a friend of mine....
PW: And sometimes they just outright kill them, too.
CB: Well, a friend of mine when I was there, was a former occasional player for the Detroit Tigers, who was more at the top of the minor leagues, who sometimes was in the lineup and always at their Spring Training Camp, [a] very, very nice man. He made a mistake and it was sort of out of character for him, anyway they sent him there and he complained of blood in his stools and he was repeatedly told, “oh it’s just hemorrhoids,” and he said, “I don’t have hemorrhoids.” And they said “of course you do,” and told him to go away. And finally he was diagnosed with rectal cancer and it was too late. They shipped him out to a prison hospital but it was too late. And he died and that need not happen.
PW: And unfortunately they do that on a rather frequent basis.
CB: And I don’t think they have any regrets about it.
PW: No they don’t. You’ve written numerous historical books and biographies, and you’re quite the fan of history and have a pretty good overview of would you say Western history over the past several hundred years?
CB: I would say in some areas of U.S. history I would qualify as an undoubted historian, especially in Roosevelt, Franklin Delano Roosevelt. In other countries I would say I’ve got a good informed personal, sort of hobby reader’s knowledge of major Western countries over the past several hundred years, yes.
PW: I guess with that kind of context, and that kind of background, at this point the United States has 2.5 million people in prison, which is more people than any other country in the world, in human history has ever [been] imprisoned....
CB: Yeah, 5% of the world’s population is in the United States, and 25% of the incarcerated people are in the United States.
And, by the way, half the world’s lawyers [are] in the United States, too.
PW: Yes, and there may be a correlation. So as a historian, what do you think of this, what is your take on it, and one of the things is it sustainable, is it unsustainable?
CB: Well, unfortunately it’s sustainable because, well, the cost is excessive [but] it’s not terribly burdensome opposite other costs which get completely out of control and producing these huge deficits, which could be addressed if the political class hadn’t failed the country so badly, and eventually will be addressed. What it tells me is that one of the criteria of a national civilization, the civic standards of a country, is how it treats accused people and up to a point, how it treats convicted people. And the United States flunks the test....
PW: I think it’s interesting too, because if we look at South Africa, which emerged from apartheid, I follow the South African constitutional court on a regular basis, and you know their decisions, they held the death penalty to be unconstitutional and uncivilized. So many other countries you look at how they differ from the United States and they are rather significant differences.
CB: This is a country that accuses far too many people and convicts far too many people and imprisons far too many people for far too long. I mean, Senator Webb of Virginia, in that essay I’m sure you’ve read, it’s called “Criminal Injustice,” pointed out that given that the United States has 6-12 times as many incarcerated people per capita as other prosperous democracies, specifically Australia, Canada, Britain, France, Germany and Japan, either those countries don’t care about crime, which is rubbish, they do and have a lower crime rate than the U.S. does; two, Americans are uniquely addicted to crime, which is rubbish, they aren’t; or three, the system isn’t working well. Which is bingo, the truth.
PW: And what do you think accounts for that, why do you think that is?
CB: Look, first of all, I think you would probably know better than I. But I think, and of course it’s complicated, I think that this country had, up until the mid 70s, it had approximately the same per capita incarceration rate as those other countries. Might have been a little higher, but not much, and I think what happened was, and there was a respectable penal reform movement that was almost a minority but was taken seriously....
PW: It existed.
CB: It existed and was frequently referred to, and not just scathingly ignored or mocked. And I think that three things happened. The country became frightened by black radicalism, especially after the riots at Attica and San Quentin. The view developed that black extremism, that African American extremism was a widespread problem that had to be cracked down on very severely. And along with that was the drug war, which of course has been a complete fraud. It’s spent $1 trillion incarcerating, I think, a total of over 2 million people, all of whom were easily replaced. They were small fry which I think is a perfect illustration of the virtues of supply side economics.... And when we have this outrage of the United States, instead of when it was seriously cracking down on middle-class university students and so forth, it just keeps combing through the ghettos, sweeping up the poor people. And the greatest military power in the world ostensibly can’t control its own borders. The fact is, if the United States wanted to keep drugs out of the U.S., one division of the armed forces would do it. I mean they’d have to be trained specially and they’d have to be deployed carefully, and in order not to harass legitimate commerce and tourists, you would need a lot more border points and so forth, but it could be done.... The other thing that happened was that the feminist movement sold the theory approximately at that time, that there was a huge proportion of male Americans indifferent to crimes against women. And the only way to deal with all of these things was sort of this law and order business and all the politicians from left to right got on that show. Bobby Kennedy and Nelson Rockefeller were just as bad in that regard as Ronald Reagan and Richard Nixon, or Lyndon Johnson, who was kind of in the middle ideologically.
PW: That’s one of the things that we’ll just skip ahead on here, that’s one of the things I was going to ask you about. Here in the United States you can say that mass imprisonment is antithetical to any notions of liberty, but you can say that liberals, conservatives, left or right, whatever, it’s very much a bipartisan enterprise and everyone wholeheartedly embraces it. We haven’t really seen any type of questioning of it, or dissent from it, not even the black middle-class – they’ve largely been silent about it.
CB: I was shocked. I was imprisoned when Obama was elected and Holder came in as Attorney General – first African American occupants of either position – and a lot of my African American friends thought, basically, they’ll open the gates for us.
PW: Something’s going to change!
CB: Exactly, but the disparity in the treatment in powder to crack cocaine was up to 100 to 1.
PW: It was 100 to 1, now it’s 18 to 1.
CB: Yeah, and it’s still scandalous. And I have never, to the best of my knowledge, had a scintilla of cocaine at any time, and I don’t know anything about drug use other than normal prescription drugs. It is impossible for me to see that that is anything other than a deliberate racial disparity.
PW: So now of course, by lessening the disparity we’re only 18 times more racist, whereas before we were 100 times more racist.
CB: If they changed it to 1.5 times severe, just because they think crack is more dangerous or something, that I would understand, but moving it from 100 times to 18 times just draws attention to what’s really going on.
PW: And the interesting thing, too, is that it took 23 years of reform efforts just to accomplish that.
CB: And it took a black president and a black Attorney General almost two years just to accomplish it. But you see, you would have noticed, the local news almost everywhere in this country is “the crime of the day,” it’s the only way they can get viewers.
PW: One of the things I was going to ask you about, especially given your background in the media, why don’t we talk about the role of the media in perpetuating the American police state.
CB: It’s terrible in this country. It’s frankly not as bad in other countries where they do spectacularly cover crimes, either crimes that are particularly odious or that do involve prominent people, of course they do, but not like they do here. Look at Strauss-Kahn, who at the time was the head of the IMF [International Monetary Fund]. Now all of the charges have been dropped; meanwhile, they threw him in Rikers Island.
PW: I think with the rest of the world, the American justice system doesn’t carry much credibility.
CB: It’s not respectable.... The U.S. justice system is treated and regarded with disdain or skepticism by almost everybody outside this country. The preoccupation with the death penalty, this fetish about the perp walk and putting every-body in handcuffs all the time....
PW: Which actually caters to the media, all these things about the perp walk. You ask the cops and they say we actually do this for the media and then the media, of course, [says] “we don’t ask them to do it we just happen to be there to take pictures.” Plaster them on the front page or have them on the six-o’clock newscast.
CB: There’s no doubt in my mind the media played a role in frightening this country in the 60s and 70s.
PW: I think they still do. There’s been studies that have ... shown that over the last 10 or 15 years, as crime rates have gone down by dozens of percentage points, the media coverage of crime on the local level increased by 3, 4, 500%, so that the perception among people who, especially among those that watch local TV, is that the crime rate is going up when statistically it’s actually going down.
CB: Sure. But that’s the only way they can get viewers for the local news. It’s the crime of the day even if the most frightful thing that’s happened in the whole metropolitan [area] is someone stealing a $.05 scarf, they’ll turn it into “girl behind the cash register staring into the face of death” or something. Look at Nancy Grace; they just try people [in the media] who weren’t even indicted yet. They’ll say, “why is this person at large?”
PW: And I think what we see too much of, in this country at least, certainly with regards to large portions of media, is largely there is no critical analysis or a total suspension of disbelief, especially when covering criminal justice issues. That’s one of the things that nominally objective journalism means: you get both sides of the story. Yet all too often on this stuff, there’s only one side of the story. They go to the cops, they go to the prosecutor, they go to the prison officials, and that’s the only view that gets reported. Do you think that that one-sided lopsidedness has basically helped get us to where we’re at in this country?
CB: Yeah. I think it’s a terrible problem. There are exceptions. Some journalists have done some wonderful work in exposing injustices, like Dorothy Rabinowitz for instance, but yeah, I think it’s a terrible problem. I think the media has been inflaming public fear and let’s just take this Strauss-Kahn business.... [E]ven though a very high profile was being accused of rather fantastic accusations from a rather dubious source, and it just came as a bolt from the blue that the case had collapsed. Because the prosecutors, or rather Strauss-Kahn’s counsel, had exposed....
PW: If he hadn’t had counsel, I think Mr. Strauss-Kahn would still be sitting in Rikers Island or in prison.
CB: Maybe they would have moved him up to better than that. But yeah, if he hadn’t had counsel or been able to afford it then he would have gone down.
PW: As someone who very closely monitors what goes on in media in this country, especially with what goes on in prisons and jails, for example, for one really good exposé or investigation into injustice or bad conditions, which is very much the exception, [it] is drowned out by the daily barrage of “it bleeds it leads” news coverage, [which] as you say is frightening people.
CB: But you know there are 47 million people in this country with a record.
CB: Admittedly, most of them are something that aren’t stigmatizing, like a DUI 20 years ago or a drunken disorderly at a frat party 30 years ago when two guys were competing for the affections of the same girl or something. No one today would say that means this guy is an inferior character.
PW: One of the things that’s interesting, for example this has come up with the stigmatization of sex offenders, where 30 years ago a gay man is convicted of public indecency and now 30 years later he’s being told he has to register as a sex offender.
CB: It’s awful. This is not my taste, but that’s not the issue. Someone has a lot of distasteful photographs in his home, and he can be sent to prison for that.
PW: And I think that is one of the things too that this is a country that prides itself as being the home of liberty and freedom....
CB: Please, pass the sick bag.
PW: There was a case that came down in the 10th Circuit, it was about 10 years ago, I think it was the [Singleton] case, but there was a panel on the 10th Circuit that held that trading testimony in exchange for a lighter sentence violated, I forget what the exact holding for it was, they held it wasn’t allowed. And of course when the decision came out, I thought, “This wouldn’t last long,” and of course they vacated it in a matter of months.
CB: It’s a terribly abused system, and everybody knows it, you know? When they target someone they’ll indict everyone in his family, his wife, his son....
PW: They put pressure on him and it’s just one of those things, “Hey we’ll drop the charges against your wife if you plead guilty, we won’t go after your kids if you plead guilty,” that seems to be the norm here. In one of your interviews, I think it was also [in] your book, you refer to the United States as a “prosecutocracy.”
CB: I think I invented the word.
PW: I like the word, I think it’s really good, and I guess that’s one of the things too, I think we’re used to the term “police state,” but I would say that one of the things is that prosecutors don’t come out of nowhere. They’re all at least, at the state level here, they’re elected by the local electorate, at the federal level they’re appointed by the president.... What do you think about the political system that makes this possible? Basically, and I’m assuming you’ll agree with this, there really are no checks or balances on prosecutors in this country. They’re pretty much not accountable to anyone, and there are no remedies against abuse of prosecutors.
CB: And they have in practice absolute immunity. To me, they’re a demonstration of a state within a state – they’re just terrorizing everybody. It was when in the same year, they took down the chief of staff of the vice president, Scooter Libby, and as far as I could see they didn’t have a case against him. But Washington, DC is so partisanly Democratic that the jury just wanted to stick it to the White House. And it was easy for the prosecutor. And then they went after, for good measure, Senator [Ted] Stevens from Alaska, a five-term Senator, powerful Senator.
PW: I think his conviction was reversed and that’s because he had excellent counsel. If you talk to the people convicted for smaller charges that carry harsher sentences [but] don’t have high legal resources, prosecutors in this country routinely hide exculpatory evidence.
One of the things is that police states need more than just cops, they need prosecutors and judges. What’s your view on the role of the judiciary in perpetuating the system?
CB: Well, as far as I can see, most of the federal trial judges are ex-prosecutors, and in their mentality, they’re still prosecutors.
PW: I think the joke is that the prosecutor is a cop in a suit and the judge is a prosecutor in a robe.
CB: Yeah, and the jury is mainly imbeciles.
PW: None of which is very good.
CB: Look, I am sure that many of the prosecutors must be decent and responsible people, it’s just not believable to me that they’re all unreasonable zealots who think it’s more fun convicting an innocent person as much as a guilty one. But there is no shortage of such people, and they’re tolerated far more than they should be....
PW: What are your views on the war on drugs?
CB: Complete fraud. For the reasons I said. In the first place, I don’t think they’re conducting it seriously.
PW: My thing has been it’s always more about public theater and show, because I think that if you’re a believer in the law of the free market or the rules of the free market, the fact that you have illegal substances with no known supplier or distribution channel yet you can get them everywhere, from maximum-security prisons in this country to every hamlet or village in America, that seems to indicate that there’s really no serious hindrance to their dissemination or distribution.
CB: The greatest military power in the world can certainly control its own borders if it wanted to. As I said, one of my fellow inmates, when I was in prison, when I asked him what his occupation was, he said “I steal planes.” One thing led to another, he was explaining to me how easy it was to steal a private plane, you see, and then he would fly it to Central America and they’d repaint it and things – this wasn’t his department, he would just take them and deliver them – but then they’re used to import drugs. And I said, well, surely if it were serious, the U.S. Air Force or the Naval air force would stop that. And of course they could. Do you think that anybody is going to fly a drug plane if there are F-16s in the air?... They’re just not serious and they’re not really trying to stop it. And instead of trying to resolve the issues of the demand, they’ve got the effrontery to go tell other countries that they’ve got to stop the production or at least the transmission of it through their country, so you’ve got a civil war raging in Mexico.
And instead of imposing [the war on drugs] uniformly, as I said earlier, they really impose it on the politically and legally easy people to impose it on. If they actually had to conduct trials on the middle- or upper-family people all the time it would be much more complicated. And also, they go for imprisonment more than treatment, and treatment is much less costly and far more effective. I think the whole thing a colossal fraud. I used to think that someone like Barry McCaffrey, for instance, was an honest man and I think he probably is, and it’s not for me to attack the individuals called drug czars, but I cannot believe that the hierarchy of that organization isn’t completely riddled with people who either if they’re not taking bribes, they’re somehow gaming the system, because if the United States actually conducts a war it is normally very efficient and serious. This has been a complete failure.
PW: What are your views on the death penalty?
CB: Totally opposed.
PW: And that’s in the context that at this point, I think the United States and Japan are the only industrialized, capitalist countries that still execute their citizens....
CB: I think the whole idea of the state ceremoniously taking a life is disgusting. And secondly, of course ... especially in this system, you’re bound to convict innocent people.
PW: And in this case, execute them.
CB: If it’s a murder case, and the accused is not a well-to-do person, he gets into the hands of the public defenders and they’re stooges of the prosecutors, and their objective is not to provide a defense but to provide a fig leaf.
PW: I think, in a lot of cases, they’re well-intentioned but they just don’t have the resources to compete with the government.
CB: Some of them maybe, but in a lot of cases, Paul, they just foist upon their pro bono clients the comment that they have no choice, they’ve got to plead guilty, that they’ve got a deal for them with the prosecutor, and when they get to it, the prosecutor doesn’t abide by the deal. And it’s a scam. And as you know, there was a famous court decision, I think it was 1963 that’s in that movie, Gideon’s Trumpet.
PW: Yeah, Gideon v. Wainwright, the right to counsel.
CB: But you see, for example, in Britain and France, the death penalty was abolished after it became clear that an innocent man had been executed.
PW: And I think the key thing is that in both those countries, it was the ruling class that turned against the death penalty, because at the time that the death penalty was abolished in both those countries it was tremendously popular, I think it showed 70-80% support ratings in public opinion polls....
CB: I’m afraid if you had a referendum the death penalty might carry in a lot of countries, but they just don’t treat it that way. [In] Canada, they suspended them in the early 60s and it was abolished in the late 60s. There’s been no executions in that country for approximately 50 years. For a long time, I don’t think it would happen now, but for a long time there was no doubt that had there been a referendum the public would have gone for the death penalty, they would have approved of it. But that is not the case now. I mean, we had a case in Canada where a man named Marshall in Nova Scotia was convicted for murder and spent I think 14 or 15 years in prison as a convicted murderer and then it was established he no more committed the murder than we did. And it wasn’t like this ghastly business in Tennessee last week, where they found these three people that had been convicted and been in prison for 17 years....
PW: Oh, that was Arkansas, the West Memphis Three.
CB: One of them 17 years on death row. And they got them to plead guilty for a lesser offense; sentenced for 10 years so they served it and were released. And in their allocution they said this is a complete fraud, I didn’t do this but just to be free I’ll say it. The law is an ass ... and you can’t expect a system like that to be respected. And the Marshall case in Nova Scotia, at least the Crown Law Office, the government apologized, paid him I think $500,000 or $750,000, but it was, you know, a significant amount, and wipe the slate. It doesn’t give him back those 15 years, but it’s the best they can do at least.
PW: And it’s interesting because here in the United States all too often prisoners are exonerated, they’re conclusively proven through DNA evidence to be factually innocent, and the state still won’t give them any money or compensation or apology. We’ve been talking about the buildup of the police state here in the United States and how it’s occurred with a bipartisan consensus....
CB: I’ve got to say my chief complaint isn’t with the police, my chief complaint is with....
PW: The prosecutors?
CB: With the politicians that introduce these draconian laws, the high courts who have sat like suet puddings while the 5th, 6th, 8th Amendment guarantees of due process, the grand jury’s assurance against capricious prosecution, no seizure of property, the just compensation, access to counsel, impartial jury, prompt justice, reasonable bail ... all of that’s been thrown out. No one in this country can expect any of it. And my chief complaint is with the prosecutors, the courts, especially the higher courts, and the legal profession – the leaders of [the] legal profession more than the police. I think in a lot of places the police do a fairly good job, there are some bad ones, and I don’t think it’s an over-policed country, but there’s no doubt that many policemen are very conscious of, and perhaps irresponsibly so, of their ability to inconvenience people and throw their weight around. But in general I think police forces don’t do a bad job....
PW: And I think that is a very good point. Because when we lock up 2.5 million people in prison, I mean, hey, the police didn’t put them there. They didn’t prosecute them and it took a judge to send them to prison.
CB: And better police work is part of the declining crime rate.
PW: One of the things I was going to say was as far as the buildup of the prosecutorial state or whatever, there hasn’t been any political opposition to it. Why do you think that is?
CB: I think it’s a political free lunch, and the public bought the line, they’ve been terrified, and there’s no constituency for the accused. There’s this Manichaesm system, where once one of your stacked-deck courts convicts somebody, he’s a non-person. In the old Stalinist terminology, he’s repressed.
PW: I think the American term, and I think this goes back to England as well, I think the term was civil death – that until fairly recently, the 1960s or 1970s, those in prison were civilly dead. They couldn’t inherit, they couldn’t get married, they couldn’t get divorced. There is a rich American tradition on that as well.
CB: Well it’s a little better now, I wrote a piece on it when I was released and I referred to them as the walking dead.
PW: I know, I thought that was pretty good.
CB: Don’t misunderstand me; I’m not in favor of mollycoddling people who do seriously bad things, but....
PW: There’s a difference between mollycoddling and an inherent sense of decency and justice.
CB: Exactly, and a kind of sadistic tormenting of them, which is what the system engages in.
PW: And it’s interesting because it’s been institutionalized and bureaucratized on a mass level in this country
CB: I gotta say, that the prison where I was, it was a low-security prison, there were some decent people and there were a few rotten apples.
PW: In terms of philanthropy, criminal justice reform is less than 1% of philanthropic giving in the United States, which is pretty much like the lowest of any type of area of philanthropy. This is in the context that pretty much anyone that’s paying attention would agree that America’s criminal justice system is in dire need of reform for the better, so any idea why, or insights why, that number is so low?
CB: No, you and I have talked about this before. I thought that by now you would have one of these film stars, a lot of them are reasonably accessible for altruistic causes, and I would have thought that you would’ve had at least one of them taking up the cause.
PW: Paris Hilton isn’t taking my calls anymore.
CB: Some wealthy people, including some that I know that have had criminal-legal problems, my impression of them is that it was just a nightmare and they want to treat it like a nightmare. It came and it ended, and they don’t want to think about it again. That would include Martha Stewart and Michael Milken, for example. I will say this: I think it is going to change when a couple of things happen, because they drag a million more people into the system every year.
PW: One of the things, I think, is the more mass imprisonment grows, the better the chance for reform, because the more people it’s affecting.
CB: Well first of all, you’ll get such an expansion of it through the population, not just the poorest people, that it will start to stir about a bit eco-politically. Secondly, and it’s with some reluctance that I get into this, they’ve ruined unjustly the lives of so many people that eventually there [will be] some murders of judges. Eventually it’s going to become a more widespread phenomena, and I don’t approve of that, I’m not encouraging that, I think that all the rhetoric will be “we will not negotiate with murderers,” but they have to face the fact the only way anything happens in this country is through violence. I don’t think there is any ... spirit of reform in this country at all. I don’t think anybody does anything really seriously politically, as “let’s make something better.” It’s just a Darwinian contest of different masses of strength.
PW: I have to say this, as an advocate for prisoners’ rights I have to look back and I look at the progress that has been made on gay rights in this country, and it’s a little short of astounding. I was born in 1965 and it was still illegal, I think in at least 16 or 17 states for people of different races to marry. And fast forward that....
CB: It’s shocking that [such laws] went on for so long, isn’t it?
PW: Yeah, and that was when you think it took the Supreme Court almost 102 years after the Emancipation Proclamation to say that yes, people of different races can get married, and then in less than 40 years from the time they have that ruling you now have basically de facto gay marriage in at least ten states.... It’s just this massive, there’s been a real social and political shift on that issue. And well, looking at it as an advocate, I think really I’m certainly very impressed. But I think some of the key things we’ve seen, there is a lot of time, effort and money put into that. There’s been a legal strategy, there’s been a political strategy and there’s been a social strategy. And obviously, social acceptance for gays and lesbians is far more now than it was 30 years ago.
CB: All of these groups have been very effective....
PW: Yes, compared to what it was say 40 years ago. One of the things too when we talk about the prosecutorial system, and you see wealthy men like Bernie Ebbers, for example, the man in his 60s sentenced to basically life in prison and he reports to prison to die in prison. And unlike most people going to prison that are poor and have little in the way of resources, any insights on why people are doing that?
CB: You mean why do they go for these outrageous sentences?
PW: In a lot of these cases. You know who Mark Rich was?
CB: Sure, yeah, yeah.
PW: Take Mark Rich. Whatever anyone thinks of him, I think he’s a pretty savvy guy, and he said rather than take my chances in a courtroom against this, I’m going to hightail it to Switzerland and wait it out there. And I think after twenty years he was pardoned.
CB: Yeah, well he contributed a fair bit to the government party. But in that case I think the statute under which he was convicted was nonsense....
PW: Yes, but he didn’t take his chances with the criminal justice system.
CB: In my own case, I never considered that. I was going to fight it out. And partly it’s because I didn’t realize how corrupt and corroded the system and what a stacked deck it is. But even if I had, I would have done the same thing. I had a lot of assets in the United States and whatever happened I was determined to make the best case I could that I was not, in fact, guilty. But if I had not had any assets and wasn’t particularly well known and hadn’t a lot of friends here and valued their respect, I can’t say it wouldn’t have been tempting....
PW: What did you learn while you were in prison?
CB: I found it interesting in some ways, it was tedious of course. Normally, I do get on fine with people, but I didn’t know if I would get on, because I hadn’t had much experience with this milieu of people. But I got along fine. I had no trouble with any of the inmates, and indeed, I only had a couple of minor verbal exchanges with the regime.... So my job there was a tutor. I got quite involved with helping these people to pass their GEDs and we got more than 100 of them through, we doubled the graduation rate, my two colleagues and I, fellow tutors. It was interesting work and I got very interested in their, in these people, ones who opened up a lot, and it was none of my business but some of them became quite expansive you see. And so I ... have a higher appreciation than I had before of how many, and how seriously disadvantaged people are in a rich country like this, specifically this country which is a rich one. I found that a lot of these – now let’s face it, a lot of these people are essentially scoundrels – but they’re quite interesting.
And I did tell the London Daily Mail, the composition of the [prison] I was in was considerably more interesting than the membership of a number of clubs I belonged to.
I didn’t specify which ones, as I didn’t think that’d be appreciated by the management committee of the club, but it’s true, a lot of them were quite interesting. And of course, you learn a whole lot more about the terrible wastage of human resources. I was in a place where very few people had been convicted of violent things, a few had been....
PW: I’m thinking with the BOP [Bureau of Prisons], these are guys, generally they’ve done a lot of time and they’re working their way out of the system.
CB: Either that or they’ve had relatively light sentences to begin with. And some had come from max, to medium to low. There were different types; very few with a violent background. For example, when I started to look into this, there were just about 650,000 people in this country in the mid-seventies who were in mental asylums, or mental hospitals, institutions....
PW: Right, now they’re all in prison.
CB: They’re all in prison ... and they don’t belong in prison. You’d see some of these people heavily medicated, shuffling around like zombies and talking to themselves. They don’t belong in prison.
PW: And actually, I think the prison officials are the first people to agree with that.
CB: They would say that, I’m sure they would say that. And on the other hand, I would say about 20% of the people there, if you opened the gates, took down the fences and took down the doors and said that everyone is free to go, they would cling to the furniture.
Otherwise they’d be skid row bums. They’ve got companionship, a roof over their heads, they get three meals a day – it’s not fabulous cuisine, but it’s not like they’d be dining in fine restaurants if they were outside. And they watch television; it’s a welfare system.
And that’s not what prison’s for; it’s not for people with mental problems, I mean, other than to the extent that their mental problems cause them to commit crimes, and even then, it probably isn’t for them. And it isn’t a substitute for an orthodox welfare system. I will say that some of them are probably incorrigible but not violent.... I never much thought about it, but prison is a completely stupid place for nonviolent people. I mean it makes no sense. It’s only done because it’s been done for centuries. But it’s an utterly stupid remedy or penalty. I accept that violent people, that’s a different matter, some of them may actually be a threat to other people, you have to be careful.
PW: If you had one piece of advice for prisoners what would it be?
CB: I can only speak to the low-security ones, but basically, no matter who it is, no matter what their philosophical or religious views if they have any, is just don’t give up hope.
The greatest enemy in those places is hopelessness. I’m not a blusterous person and I’m not a pep-rally person at all, but I did counsel a number of people at the edge of despair and I will say in a couple of cases I maybe made a difference. But that’s your greatest enemy. Once you lose hope, now I wasn’t going to do that because I was conducting my appeals, on a worst case I would have served 5.5 years and still would have something to live for. Anyone has something to live for, but I still had some cards to play. And I had a wife and I had children who were very loyal to me, all of them, and there was no way I was going to end up with no money at all.... So I understand that I am more fortunate than most of them, but that’s always the key: Mr. Churchill’s phrase, “never despair.” That’s a trite message, but that would be the message.
PW: Well, I don’t think it’s trite at all.
I just wanted to make sure you got your plug in for your book [A Matter of Principle], so what’s your book about?
CB: Ah, well, I wrote a book, an autobiographical book, about 20 years ago. So it brings that up to date. It has I think 15 chapters, and from chapter 4 on is really about my legal travails. It’s a lot of – I tried to make it reader-friendly, there are a lot of humorous parts in it as well as rather disappointing parts, but I try not to mire the reader in the details of these things too much.... I’ll leave to others to determine whether they like it or not. But to anybody with any interest in how the legal system works in the U.S., and there are some aspects of Canadian civil justice in it, which has some relevance to this country also, I do modestly recommend it because it lays out quite explicitly the appalling problems and shortcomings that I encountered. And that would certainly not be unique to me.
PW: And so in effect, once you’re released from the United States BOP, you’re going to be deported, and as a convicted felon you will not be allowed to enter the United States again, correct?
CB: Unless I choose to eventually make an application on the basis that my state, and I quote, “moral turpitude,” is not such as to threaten the country. Now after the way I’ve been treated in this country I wouldn’t be in any thundering hurry to apply. But I do know the country well, and I like it.
PW: What prospects do you see for any type of criminal justice reform in the United States?
CB: I just don’t see it. There’s no lobby for it. I think it will happen eventually. I think, as I said, it will come as a result of adding effectively a million people to those with a [criminal] record every year.... And unfortunately, I think a greater degree of violence by people whose lives have been unjustly ruined by the system against those they may consider to be symbolic of their problems. The combination of those will get something going eventually, but right now it’s just a problem the country just doesn’t like to hear about. And no one knows that better than you.
PW: And anything you’d like to add, anything you’d like to say that I haven’t covered?
CB: Since I’m not an American and will be leaving the country there’s not much I can do. It is a terrible problem, and I cannot urge strongly enough – I said this when I put on my weekly column on the National Review online – the remarks I made when I addressed the court in June, in Chicago. I think I said, “My dear American friends, this is a terrible problem this country has.” And it is. So if I may take the liberty, I just urge all your readers not to adopt the attitude that “I just had an awful time but it’s behind me now and I’m going to pretend like it didn’t happen.” Because if you people don’t take the lead in making the country aware of how defective its legal, criminal justice and custodial systems are, which we said earlier is one of the very principal criteria of judging the civil standards and humanitarian sophistication of society and a country, if you don’t do it, no one else is going to, and you people are all victims of it. Even a person guilty of bad things, objectively bad things – not fatuous offenses that legislatures invent to help prosecutors cast the wider dragnet, but people who objectively did bad things – this country’s departed as far as I can see from the principle that if you address the penalty meted out to you, you have a clean slate. It’s an even balance sheet at that point. They don’t. It’s stigmatizing for life, and creates an under-under class of stigmatized and atrophied people. And that is uncivilized, on top of the stacked deck of the so-called due process and the clumsy heavy-handed way that the prison system is run. And in many states, the prison systems are utterly disgraceful.... So I think [prisoners] should be the vanguard [of reform efforts].
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal cases
Black v. United States
|Cite||130 S.Ct. 2963 (2010)|
Skilling v. United States
|Cite||130 S.Ct. 2896 (2010)|