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Too big to jail: why the government is quick to fine but slow to prosecute big corporations

Top executives from some of the companies blamed for the financial crisis testify on Capitol Hill.
Top executives from some of the companies blamed for the financial crisis testify on Capitol Hill.
Getty Images

Ever since the financial crisis, many Americans and politicians have been calling for more aggressive prosecutions of Wall Street banks and executives (to little avail). It's not just banks, though — in his new book, Too Big to Jail, University of Virginia Law professor Brandon Garrett explains that even while fines for corporations across all industries have risen, the government has still often gone easy on big firms that have done wrong. Vox spoke to Garrett about his new book.

DK: What was to you the most surprising or alarming trend you found in writing this book?

BG: There are so many things that are disguised by the rise in fines [see chart below]. My first reaction was, "Oh my God, these corporate crime cases have exploded. I've never seen fines like this." Even just in the last few years, as I've been working on the book, all of a sudden these million dollar fines have become more routine, even, each record breaking the next one. So just the sheer amounts of money have surprised everyone. No one ever expected to see cases this big.

But all along, I would have thought that given the things the Department of Justice has been saying about how aggressive they want to get about corporate crime — I would expect to see more corporations prosecuted, and instead, those numbers have been declining. And I would expect to see more individuals prosecuted in these cases, and very few individuals are prosecuted.

Brandon Garrett prosecutions fines

Size of corporate criminal penalties by year (figures for 2014 are for fines thus far). (Source: Brandon Garrett)

DK: it's so easy to think about these prosecutions as being of banks, ever since the financial crisis. It's surprising to see how big fines are across the board.

This isn't just about banks. The same too-big-to-jail concern exists in a host of settings. Pharmaceutical companies fear being debarred from Medicare and Medicaid. But on the other hand, pharmaceutical companies also know that Medicare and Medicaid patients can't do without their pharmaceuticals. Realistically, they are not going to get debarred. Just like banks know that realistically, they are not going to lose their charters. Just like hospitals know that realistically, no community wants their nonprofit hospital closed.

And there are good reasons we don't want to put important companies out of business just because a few employees committed a crime. But when you have a company that really is a breeding ground for crime, and where the crime was really benefiting the company, part of the business plan, then all of a sudden the dynamic gets really ugly.

You worry that the very ability of the company to profit from its crime helps it to remain above the law.

DK: So what does it mean that the type of crime changes by year?

You can really see how in one year it might be pharmaceutical fines that explode. And another year it's money-laundering. And another year it's environmental. That chart continue to go up and up and up and up in the last two years, but what that chart disguises is that it's somewhat random each year — which is the crime, which is the industry that's going to bring in the blockbuster crime. And what's driving those numbers is really just a handful of cases each year.

But that said, in any one of these cases, the fines are a fraction of what they could have been, and in plenty of the cases, the companies are disgorging their profits, but that's not much of a penalty, to just give up your profits. It seems like something of a worthwhile risk if you don't always get caught.

The criminal statutes are set up so that companies are to be fined up to twice their gains or twice the losses to victims, and it's incredibly rare to see that fine provision really used to full effect. Companies are given leniency.

And there's some good reason to give companies leniency, to really encourage them to report their own crimes and cooperate. I think we'd be even happy to see companies get serious — if the result was prosecutions of individuals who were responsible, or if they were cooperating and they had evidence that they had absolutely reformed themselves so that this could never happen again.

But most companies don't treat it as an opportunity when they get prosecuted for crimes.

DK: Is the problem that the government is seeking out fines and penalties instead of prosecuting? If so, then why is the government being so shy about this?

BG: Well, one lesson is that the bottom line dollars being paid don't tell you whether companies are being treated leniently or harshly, because it could just be that more and more serious crimes are being uncovered, but they could be treated just as leniently as before. And I think that's what the evidence is.

When we think of criminal punishment, in regular criminal cases, the fine is not the main part of the punishment. Obviously, putting someone in jail is. But there's also a conviction, and the serious consequences of being a convict, and companies are avoiding that, for starters.

I think we're going to see this as a bigger and bigger problem as banks and other companies are increasingly recidivists — except [unlike individual criminals] they avoid the consequences of committing new crimes, as the last time they committed crimes they received these non-prosecution agreements [in which they perform specific actions in exchange for dismissed charges or no charges]. So with no crime on their record, nothing happens if they do it again.

Although companies can't literally be put into jail, despite my cute title, companies can be controlled and supervised, just like an individual criminal can be. So that's where the non-fine aspects of these agreements come in. Companies can in effect be put on probation, where they're monitored and forced to change their activities to make sure that employees don't have the same incentives to commit new crimes. I view that as just as important as paying money, but prosecutors clearly haven't treated it as particularly important.

DK: Is there a disconnect between how a corporation is treated in the justice system vs. individuals? It seems like there may be this inclination to rehabilitate a corporation but to punish someone who has done wrong.

People like me think that rehabilitation should be brought back into the criminal justice system. I wish we focused more on rehabilitating individuals, rather than just throwing them in prison for years, to great harm to them and collaterally.

There has been some softening of our overcriminalized justice system in the last few years. We've done a little bit to reduce the impact of sentencing guidelines. There have been efforts to grant clemency to people who receive mandatory minimum sentences that were excessive.

But all of that is tinkering on the back end. What companies get is the front end. They get to avoid convictions entirely. They get to avoid any collateral consequences because there is no conviction.

So it's not just, "We could rehabilitate prisoners, think about reentering them into society a little bit more, think about making their sentences a little bit milder." Companies are getting something entirely different.

That said, companies can't go to jail, and rehabilitating a company is really important. But you don't have to rehabilitate the company and let all the individuals that committed crimes go free.

DK: I want to focus a little more tightly on the banking sector. Other experts have told me that the DOJ just hasn't had enough firepower to go after big institutions since the crisis, and that also a lot of these things are tough to prove. What do you think is the reason that we haven't really seen more aggressive actions here?

BG: There have been people shipped off to prison, but not in the cases people have in mind.

Instead, there have been bank prosecutions, but over crimes that seem tangential to the crisis, like the LIBOR manipulation. But those tend to be crimes where it's easier to show that a small number of people had intent, and some of those are crimes where there are more easily identifiable victims, versus some of the mortgage fraud, where there are sophisticated actors working with each other, where to show intent to defraud, you have to show that there's a clearly deceptive scheme that misled someone else.

And to show that you're intentionally misleading someone else? It is hard to criminalize. You don't want to criminalize business deals. In any business deal, both sides are going to be trying to puff up their side and say, "This is a great opportunity. You just have to take advantage of it."

Also, any given deal will have been signed off on by dozens of different people. When you have so many people signing off, and you have the rating agencies signing off in their way, it's hard to pinpoint blame.

And then there are real questions people have raised about whether that kind of hard-nosed criminal investigation would have even been possible, given that the government was embedded in these banks, trying to prop these financial institutions up after the crisis.

I think people are right to wonder what to make of the mostly civil settlements that have resulted form the financial crisis, since these settlement are hard to understand. It's hard to understand where the amounts come from, [and] the conduct isn't really carefully described in the same way that it would be if it was a criminal settlement.

But when the Department of Justice says, "That's the best we can do," that may be right because it's the best they can do now. I just don't think anyone will ever be able to answer whether they could have done better in an imaginary world where they had sort of gone sort of Eliot Ness on these banks right after the crisis.

DK: So what are the biggest changes we need to make to how we do corporate prosecutions?

BG: The simplest version of that is I think they should be brought as real criminal cases. Insisting on convictions, supervised by a judge, with monitoring, with fines calculated for real under the guidelines. The state of mind should be a criminal state of mind. We should be thinking about punishment. We shouldn't be thinking about settlements or convenience. And if it takes more resources to really treat these cases as criminal, then those resources should be found.

I would love for them to be diverted from the resources poured into all the low-level drug and immigration cases that so many prosecutors' offices spend their time on. If that's the way to readjust the priorities in our federal criminal system, I'm all for it. There would be rehabilitation all around.

But the answer is no, that's never going to happen. If Congress doesn't want to fund the SEC, they're not going to want to fund a serious corporate crime unit. Well, then we can't blame Eric Holder and the DOJ anymore. Then we have to blame ourselves for not pushing Congress.