[ed. See also: The Financial Crisis: Why have no high-level executives been prosecuted?]
Just under two months ago, when the $13 billion settlement for JP Morgan Chase was coming down the chute, word leaked out that that the deal was no sure thing. Among other things, it was said that prosecutors investigating Chase's role in the Bernie Madoff caper – Chase was Madoff's banker – were insisting on a guilty plea to actual criminal charges, but that this was a deal-breaker for Chase.
Something had to give, and now, apparently, it has. Last week, it was reported that the state and Chase were preparing a separate $2 billion deal over the Madoff issues, a series of settlements that would also involve a deferred prosecution agreement.
The deferred-prosecution deal is a hair short of a guilty plea. The bank has to acknowledge the facts of the government's case and pay penalties, but as has become common in the Too-Big-To-Fail arena, we once again have a situation in which all sides will agree that a serious crime has taken place, but no individual has to pay for that crime.
As University of Michigan law professor David Uhlmann noted in a Times editorial at the end of last week, the use of these deferred prosecution agreements has exploded since the infamous Arthur Andersen case. In that affair, the company collapsed and 28,000 jobs were lost after Arthur Andersen was convicted on a criminal charge related to its role in the Enron scandal. As Uhlmann wrote:
Yes, you might very well lose some jobs if you go around indicting huge companies on criminal charges. You might even want to avoid doing so from time to time, if the company is worth saving.
But individuals? There's absolutely no reason why the state can't proceed against the actual people who are guilty of crimes.
Just under two months ago, when the $13 billion settlement for JP Morgan Chase was coming down the chute, word leaked out that that the deal was no sure thing. Among other things, it was said that prosecutors investigating Chase's role in the Bernie Madoff caper – Chase was Madoff's banker – were insisting on a guilty plea to actual criminal charges, but that this was a deal-breaker for Chase.
Something had to give, and now, apparently, it has. Last week, it was reported that the state and Chase were preparing a separate $2 billion deal over the Madoff issues, a series of settlements that would also involve a deferred prosecution agreement.The deferred-prosecution deal is a hair short of a guilty plea. The bank has to acknowledge the facts of the government's case and pay penalties, but as has become common in the Too-Big-To-Fail arena, we once again have a situation in which all sides will agree that a serious crime has taken place, but no individual has to pay for that crime.
As University of Michigan law professor David Uhlmann noted in a Times editorial at the end of last week, the use of these deferred prosecution agreements has exploded since the infamous Arthur Andersen case. In that affair, the company collapsed and 28,000 jobs were lost after Arthur Andersen was convicted on a criminal charge related to its role in the Enron scandal. As Uhlmann wrote:
From 2004 through 2012, the Justice Department entered into 242 deferred prosecution and nonprosecution agreements with corporations; there had been just 26 in the preceding 12 years.Since the AA mess, the state has been beyond hesitant to bring criminal charges against major employers for any reason. (The history of all of this is detailed in The Divide, a book I have coming out early next year.) The operating rationale here is concern for the "collateral consequences" of criminal prosecutions, i.e. the lost jobs that might result from bringing charges against a big company. This was apparently the thinking in the Madoff case as well. As the Times put it in its coverage of the rumored $2 billion settlement:
The government has been reluctant to bring criminal charges against large corporations, fearing that such an action could imperil a company and throw innocent employees out of work. Those fears trace to the indictment of Enron's accounting firm, Arthur Andersen . . .There's only one thing to say about this "reluctance" to prosecute (and the "fear" and "concern" for lost jobs that allegedly drives it): It's a joke.
Yes, you might very well lose some jobs if you go around indicting huge companies on criminal charges. You might even want to avoid doing so from time to time, if the company is worth saving.
But individuals? There's absolutely no reason why the state can't proceed against the actual people who are guilty of crimes.
by Matt Taibbi, Rolling Stone | Read more:
Image: Spencer Platt/Getty Images via:
