Just as behavioral economists incorporate the insights of psychologists in their economic models to portray a more accurate picture of human behavior in the marketplace and predict trends, commentators should be concerned to focus on ethical issues that are ignored when corporate lawyers sanction the behavior of their clients.
As Michael Rothfeld reports in the Wall Street Journal, when it comes to corporate crime, we have a different standard by which to judge or mete punishment: “Known as ‘deferred prosecution’ or ‘nonprosecution agreements,’ these deals let the U.S. negotiate fines, put companies on probation and get them to change practices.”
With 1 percent of the population in prison, with shrinking state and federal budgets, one must be sympathetic to any judgment that excludes prison time. The standard questions of deterrence vs. fairness may fall by the wayside if we cannot afford to staff prisons nor have enough cells for inmates.
When talking of white-collar crimes, corporate crimes that are perceived to be victimless, why worry about Libor interest-rate manipulation, or about the tax evasion of hedge funds counting fees as “capital gains” with 15 percent income tax rate rather than “ordinary income” warranting 35 percent marginal tax?
Recall the “too big to fail” mantra that kept inept banks intact with government bailout funds? Oh, those socialist bankers enjoying the largess of taxpayers’ generosity? All of a sudden there was a role for government intervention.
Does it hold in the case of bank indictments?
Now we have the “too big to indict” mindset, suggesting banks are in position to defend themselves for years, costing millions to taxpayers’ representatives and prosecutors. Where is the bank headquartered? Who licenses it to do business on our shores?
Barclays had no problem paying $453 million in fines after a criminal probe into its Libor fraud. Is it simply the “cost of doing business”? Are the bank’s U.S. activities so profitable that such a fine is just another deductible cost?
If it is, we are in trouble, because no deterrence is in place, and whatever “agreement” was reached with the authorities will not deter it from continuing to lie to other banks and the public. If it isn’t, then why did Barclays agree to pay such a high fine?
Barclays is in good company, though. JP Morgan Chase, Deutsche Bank, UBS and Credit Suisse Group have reached similar “agreements” in the past few years. It neither bespeaks of deterrence nor of compliance; they and others continue to violate American laws with impunity.
“Three strikes and you are out” remains applicable in baseball and for petty criminals around the country, not for the captains of finance. In the last “mortgage bubble,” with clear intent to defraud, few bankers ended up in jail, and few banks and investment houses were crippled by fines.
Gibson Dunn & Crutcher, a law firm that follows these so-called agreements, claims that the Justice Department has collected more than $31.6 billion in fines since 2000 from some 230 agreements.
Is that number staggering? Does it say anything about our rule of law?
Common sense and practice suggest that our laws reflect our moral principles and social norms. Once we agree among ourselves what is and isn’t acceptable, we turn it into law — enshrining our values in a legal system (social contract). The Ten Commandments were a bit different insofar as Moses got them from God, rather than his fellow Israelites. Perhaps that’s why some cherish them more than the malleable laws we have in regard to corporate crimes.
But the laws are there, in plain view. It’s their enforcement that is being challenged daily by the titans of finance. With the brainpower of Ivy League graduates, they find ways to remain legally out of jail, pay fines, and promise to change their ways. But they have lost their moral compass along the way.
It was Rousseau long ago who warned the promoters of the Enlightenment that the study of the arts and sciences makes us clever but not moral, that we can argue our way out of any moral quandary without realizing that along the way we have lost our humanity, our compassion for other people and their needs.
Instead of “too big to indict,” we should demand “big enough to be moral,” requiring wealthy financial institution moral leadership rather than monetary returns.
It is our collective help they turned to when in need. Now that they don’t need us, should they forget us?
Raphael Sassower is professor of philosophy at UCCS. He can be reached at firstname.lastname@example.org See previous articles at sassower.blogspot.com