Why it’s time to set Conrad Black free

Conrad Black just spent his first Christmas in a U.S. federal prison, and if the thought of that gives you pleasure, then you’re not going to have much use for the next 900 words. This is an argument in favour of Black, but not exactly in his defence. This is an appeal to pragmatism, and perhaps to mercy, because sometimes pragmatism and mercy are essential elements of justice. This is an argument for why Conrad Black should be released from prison, if not now, then soon. Not because he’s innocent, but because there is nothing more to be achieved from his incarceration. It is a waste—of money, of potential—and it’s time to wrap it up.

The U.S. president is entitled to pardon or commute the sentence of any federal prisoner. The last days of any administration often see a bonanza of executive leniency, and Black has applied to have his penalty reduced. Most Canadians are hostile to the idea—a recent poll showed more than 70 per cent are glad to see Black languish in the joint for the full term of his sentence—and it’s easy to understand why. Black is not a terribly sympathetic figure and presidential pardons seem arbitrary and undemocratic. But P.S. Ruckman, an associate professor at Rock Valley College in Illinois, is a leading expert on the pardon power, and he believes it is “an essential part of the U.S. justice system.” First, because it provides a check on the power of the judiciary, but also because it allows justice to be more “precise.” In a system dominated by procedure, strict rules of evidence and rigid sentencing grids, justice is often a blunt force. The pardon system allows for a more subjective test of fairness.

Legal experts generally cite two key objectives in the punishment of white-collar crime: deterrence and retribution. Rehabilitation is mostly irrelevant because once you’ve been busted for corporate fraud, people generally won’t let you hold their wallet, much less run a public company. As for deterrence, there is little evidence to suggest that such a thing exists in cases of high-stakes fraud. It’s been almost 20 years since Ivan Boesky and his pals went away for their massive insider trading scheme, and it still happens brazenly every single day. Enron collapsed seven years ago, and still there is enough shady book work going on to keep forensic accountants and short sellers in brisk business. Next week will mark the 60th anniversary of the death of Charles Ponzi, the godfather of the pyramid scheme, and only last month did money manager Bernard Madoff unveil his masterpiece of the genre. When there are millions to be made, and countless ways to cover your tracks, and the perpetrators think they’re smarter than the cops, the risk of being caught is an afterthought.

But even if deterrence were possible, what more could you really want? Black lost control of the company he built over three decades, then watched from the sidelines as it was torn apart and sold in pieces. Much of his personal fortune has been decimated by his long and ongoing legal struggle. He has been forced to quietly accept the gleeful scorn and ridicule of the world press, including prurient and highly suspect examinations of his personal life. And then, of course, there’s the indignity of the time he has already served in prison. The life Black built has been shattered. Now the only thing to argue over is how finely to grind up the shards.

That, of course, is a question of retribution. Ruckman, for his part, doesn’t think Black has much hope of a presidential intervention, mainly because the public wants more retribution—a lot more. Springing a convicted corporate felon this early in his 6½- year sentence, in the middle of an economic collapse, would send the wrong message. But if retribution is the goal, one has to ask—retribution for what exactly?

Not all corporate crimes are created equal, and the Hollinger debacle bears little resemblance to the massive frauds at Enron, WorldCom, etc. Black’s abuses did not lead to massive job losses, and nobody’s life savings went up in smoke because he and others lingered too long at the bonus trough.

After he was ousted as chairman and CEO, investigators hired by the company accused Black of running a “corporate kleptocracy” that drained hundreds of millions from Hollinger. But most of those allegations never made it to trial, and of those that did, most resulted in acquittal. Black and three others were found guilty on a fairly narrow set of improper transactions, and, in Black’s case, one spectacularly ill-advised decision to remove boxes of records from his office in the midst of an investigation. The gap between the prosecutors’ accusations and the jury’s convictions is huge. And when it comes to depriving someone of their freedom, accusations are irrelevant. Only convictions count.

Naturally, that doesn’t matter to Black’s harshest critics. They’ve enjoyed his downfall immensely, but their scorn has little to do with the finer points of his case. The public antipathy toward Black in this country is fuelled by wounded national pride at his decision to walk away from his citizenship, and a sense of grievance over his personal style and politics. But those who would condemn him for his supposed arrogance, or his pursuit of wealth and influence, miss the point.

Love him or hate him, Black is a rare figure in Canada: a historian and public intellectual with something significant to contribute to the marketplace of ideas. If the goal of the justice system is to identify the guilty, to punish, deter and produce contributing members of society, then the prosecution of Conrad Black has achieved all it can. Leaving him parked in a jail cell only adds one more broken life to the tab of America’s overburdened prison system.

And for what? To make a point about going to war with the U.S. Department of Justice? That point has been made: it’s always a bad idea. We get it. It’s time to let Black begin picking up the pieces of his shattered legacy, and rebuild what he can with them. Not because he’s innocent, but because it’s just.