I have written repeatedly about how the Obama administration has treated with kid gloves the top executives of the big financial institutions even though they were responsible for the financial crisis of 2008 that ruined the lives of so many people. Now the office of US senator Elizabeth Warren has issued a short (8-pages plus three pages of endnotes) but biting report titled Rigged Justice: 2016 How Weak Enforcement Lets Corporate Offenders Off Easy that hits hard at the fact of wrongdoing by several major corporate entities, the major banks and investment houses among them, and that the Justice Department has not taken meaningful action against any of them.
The document highlights “twenty criminal and civil cases in 2015 in which the federal government failed to require meaningful accountability from either large corporations or their executives involved in wrongdoing”, and that these were by no means the only cases. These cases involve, among others, a group referred to as ‘The Cartel’ that consists of Citigroup, JPMorgan Chase & Co, Barclays, UBS AG, and Royal Bank of Scotland.
And the situation could get worse. Currently there is a bipartisan effort to reduce mandatory sentences on low-level drug offenders both because the sentences are disproportionate to the crimes and are unduly punitive (which draws in liberal backers) and in order to reduce the numbers of people in prison (which draws in conservatives because of the high cost of incarceration).
This is being hailed as one of the few signs of bipartisanship in a fiercely gridlocked government. But as I have warned repeatedly, one has to be on high alert about any bipartisan effort because they are often Trojan horses aimed to benefit the wealthy and this is no exception. Attempts are being made to insert an amendment that would “make it harder for federal prosecutors to prove that white collar criminals violated hundreds of different laws. If adopted, this amendment would severely weaken the already anemic enforcement of federal white-collar criminal laws.” What the amendment seeks to do is to substantially expand the mens rea (“guilty mind”) provision that requires prosecutors to show that that defendants knew that their conduct was illegal, to cover a broader class of white collar crimes.
As the Warren report states:
When government regulators and prosecutors fail to pursue big corporations or their executives who violate the law, or when the government lets them off with a slap on the wrist, corporate criminals have free rein to operate outside the law. They can game the system, cheat families, rip off taxpayers, and even take actions that result in the death of innocent victims—all with no serious consequences.
The failure to punish big corporations or their executives when they break the law undermines the foundations of this great country: If justice means a prison sentence for a teenager who steals a car, but it means nothing more than a sideways glance at a CEO who quietly engineers the theft of billions of dollars, then the promise of equal justice under the law has turned into a lie. The failure to prosecute big, visible crimes has a corrosive effect on the fabric of democracy and our shared belief that we are all equal in the eyes of the law.
Under the current approach to enforcement, corporate criminals routinely escape meaningful prosecution for their misconduct. This is so despite the fact that the law is unambiguous: if a corporation has violated the law, individuals within the corporation must also have violated the law. If the corporation is subject to charges of wrongdoing, so are those in the corporation who planned, authorized or took the actions. But even in cases of flagrant corporate law breaking, federal law enforcement agencies – and particularly the Department of Justice (DOJ) – rarely seek prosecution of individuals. In fact, federal agencies rarely pursue convictions of either large corporations or their executives in a court of law. Instead, they agree to criminal and civil settlements with corporations that rarely require any admission of wrongdoing and they let the executives go free without any individual accountability.
The Securities and Exchange Commission (SEC) is particularly feeble, often failing to use the full range of its enforcement toolbox. Not only does the agency fail to demand accountability, the SEC frequently uses its prosecutorial discretion to grant waivers to big companies so that those companies can continue to enjoy special privileges despite often-repeated misconduct that legally disqualifies them from receiving such benefits. Lax enforcement at other agencies, such as the Occupational Health and Safety Administration (OSHA), stems primarily from a lack of important legal tools and persistent underfunding by Congress that often turn the legal rules into little more than suggestions that companies can freely ignore.
The contrast between the treatment of highly paid executives and everyone else couldn’t be sharper. The U.S. has a larger prison population than any nation in the world. People are locked up for long stretches for crimes that involve thousands—or even hundreds—of dollars. Even the settlement process is different. For most people accused of a crime, prosecutors may be willing to plead out the cases, but they typically require admission of guilt and, if the crime involves more than a trivial amount of money, time in jail. Various three-strikes rules frequently put people away for life for non-violent crimes involving modest amounts of money. Politicians routinely get elected promising to be “tough on crime,” and both federal and state governments devote immense resources to put and keep criminals in prison.
The Obama Administration has made repeated promises to strengthen enforcement and hold corporate criminals accountable, and the DOJ announced in September that it would place greater emphasis on charging individuals responsible for corporate crimes. Nonetheless, both before and after this DOJ announcement, accountability for corporate crimes is shockingly weak.
More evidence, if one needed it, that the big banks and major corporations rule our world.