Barrel Strength

Everyone of conservative persuasion, meaning those who are concerned with the abuse of state power,  ought to be pleased with Conrad Black’s victory, however partial, in the US Supreme Court yesterday. He spent several millions of his own money to prove a fundamental legal and constitutional issue: there is no such thing as a common-law crime.

Let me explain.

Take the law of negligence for example, which is the basis of all those suits in damages you hear of. It is of a civil nature, and not criminal. It evolves with time, according to judge-made decisions.  What constitutes the standard of care may vary, what constitutes negligence varies with the circumstances, and the standard concerning foreseeability of the accident may vary with time. But no  prosecutor is going to imprison you for an “evolving” understanding of what negligence consists of.  There is no such thing as penal law which evolves unpredictably according to judge-made law. It takes a legislature to make a crime, and the law confines the ambit the crime strictly, through definitions, rules of evidence and procedure, which have the effect of tightly defining what is at stake.

What they nailed Conrad Black with – on most of his counts – was a statute whose actual content was never quite defined: denying the corporation your “honest services”. It was a short paragraph of ill-defined meaning through which American prosecutors drove a wide and unpredictable set of prosecutions, against which no defence could be effectively mounted, because the exact crime could “evolve” to fit the new standard, the one established by the prosecution.

Sensible people ought to be pleased that US prosecutors have lost this one; they have plenty more tools in their arsenal.