My new book is forthcoming from Harvard U. Press in Fall 2017 and is available for pre-order now. The book explores the causes of the great decline in the American death penalty and what we can learn from that remarkable trend about how to restore our criminal justice system.
In a new piece in Slate, here, I describe how "Fines in the millions and billions of dollars made headlines again and again in 2015, as the Department of Justice set new records in prosecutions of wrongdoing corporations." Below is a figure showing the dramatic rise in corporate penalties imposed by federal prosecutors. What I describe in this piece is where much of the corporate prosecution penalties in 2015 came from: how "what was different in 2015 was that so much of the money paid by corporate targets came from banks: almost $7 billion of the $9 billion in total penalties paid by prosecuted companies." Do these cases answer concerns that financial institutions have been "too big to jail"? They show that banks can be prosecuted, and in large numbers, and paying record fines. Whether individuals will be held accountable in these cases and whether meaningful changes will occur at the banks to reduce recidivism---that is another question entirely.
“If you only look at the big banks, you will be missing the forest for the trees,” said Hillary Clinton in the debate last night, responding to calls to break up the major banks. Corporate crime is a broader problem touching every industry and not just Wall Street. Clinton has proposed for the first time a top-to-bottom plan for policing and preventing corporate crime and financial misconduct. We have not seen the likes of it in this campaign or elsewhere. The plan addresses systemic risk in financial institutions, or “too big to fail,” but my interest is in “too big to jail”: the way the plan carefully addresses concerns that companies and banks commit massive crimes but receive mere slaps on the wrist.
We are experiencing a corporate crime wave. Billion-dollar fines are now common in industries ranging from Big Pharma to the largest banks to energy companies. Yet we just saw GM receive an out-of-court deal for concealing defects that cost over a hundred people their lives — and no charges for any employees. We have seen banks like AIG, Barclays, Credit Suisse, HSBC, JPMorgan, Lloyds, UBS and others prosecuted over and over again — typically with no charges for any employees. After the financial crisis, we saw compromised deals with banks, failures to prosecute individuals and legislation that did not generate serious accountability...
More on Clinton's plan at : http://clsbluesky.law.columbia.edu/2015/10/14/it-takes-a-plan-to-end-too-big-to-jail/
In Too Big to Jail news, I have been busy updating corporate prosecution enforcement data - adding additional cases from 2014 and DPA/NPA settlements and sentencing from 2015 to date. With FOREX related pleas still awaiting sentencing and other major cases to come in 2015, this promises to be a remarkable and record-breaking year for corporate criminal penalties.
Authors Zephyr Teachout, Brandon Garrett, and Charles Lewis participated in a panel discussion on government and corruption. Zephyr Teachout is the author ofCorruption in America: From Benjamin Franklin’s Snuff Box to Citizens United. Brandon Garret is the author of Too Big to Jail: How Prosecutors Compromise with Corporations. Charles Lewis is the author of 935 Lies: The Future of Truth and the Decline of America’s Moral Integrity.
This event was part of the 21st annual Virginia Festival of the Book, held on March 18-23, 2015, in Charlottesville.
By TOM GRAHAM
To some, a justice system approach that includes efforts at rehabilitation may seem reasonable; especially when dealing with first offenders guilty of small crimes.
But why have rehabilitation-strategies become a significant tactic for federal prosecutors who chase after corporate crime of massive scale?
We get details on how this new way of responding to corporate lawbreaking got started. Plus an assessment of how well it is, or isn’t, working.
At this week's ACS Book Talk:
Too Big to Jail
by Brandon L. Garrett, Professor of Law, University of Virginia School of Law. Since the 2011 publication of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Garrett has written widely on issues of criminal procedure, scientific evidence, corporate crime, and the law. This fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.
Prominent cries of “too big to jail” greeted the decision by federal prosecutors in 2012 not to convict HSBC, the international bank headquartered in London. When HSBC was investigated for violations of international sanctions with countries like Cuba, Iran, Libya, Sudan and Burma, and, if that were not enough, facilitating the laundering of “at least $881 million in drug proceeds,” it paid a then-record penalty of $1.4 billion. The scale of the violations was shocking. And prosecutors described concerted efforts to help dirty money transactions avoid detection, with internal notes like: “care sanctioned country,” “do not mention our name in NY,” or “do not mention Iran.” Drug cartels usedcash boxes “designed to fit the precise dimensions of the tellers’ windows in HSBC’s Mexico branches.” When HSBC’s compliance officers raised alarms, they were “discouraged” and ignored.
“We accept responsibility for our past mistakes,” said the bank’s CEO at the time HSBC settled the case. A corporate monitor would supervise a revamping of compliance. The bank had hired hundreds of compliance employees and spent millions improving anti-money laundering programs. But the bank was not convicted of any crime. This galledadvocates, editorial boards, members of Congress, and the public. The same day prosecutors filed their case, they asked the judge to approve what is called a deferred prosecution agreement. The case would be put on hold to give the bank a chance to show good conduct. A money laundering conviction could have resulted in termination of the bank’s U.S. charter. Yet no employees or officers were prosecuted either. At the time, Assistant-Attorney General Lanny Brueur explained: “Our goal here is not to bring HSBC down, it’s not to cause a systemic effect on the economy, it’s not for people to lose thousands of jobs.” And upon announcement of the settlement, HSBC shares rose.
Such deals are now quite common. In my new book, Too Big to Jail: How Prosecutors Compromise with Corporations, I examine the rapidly evolving world of corporate prosecutions. I assembled a vast database with information from corporate prosecution agreements and plea agreements from the past decade and beyond, all of which is available online. A decade ago, federal prosecutors adopted an approach favoring such out-of-court agreements. To be sure, my data shows how penalties in corporate prosecutions haveexploded in recent years. But too often, I argue, prosecutors do not insist on punishments that are truly criminal.
Companies cannot literally be put in jail, of course. And that is why adequately holding them accountable for crimes is so important. Responsible officers and employees can be targeted. Firms can be structurally reformed. Firms can pay deterrent fines and compensate victims. I found that many companies pay no fine, and even the biggest payments are typically greatly discounted. I describe how victims have intervened, like in the BP Texas City Refinery explosion case, to seek greater corporate accountability only to have their voices ignored.
Real changes to end “too big to jail” are much needed. I suggest concrete improvements such as more stringent prosecution agreements, judicial oversight, and greater transparency. I tell the success stories of companies like Siemens, which responded to the largest foreign bribery penalty of all time by totally transforming its leadership, compliance, and approach towards doing business. I describe how some judges have intervened. The judge in the HSBC case, noting “heavy public criticism” of the agreement, insisted on being kept apprised of the company’s compliance. I tell the story of the KPMG tax shelter prosecutions, and describe the challenges faced by prosecutors pursuing individual wrongdoers. And I tell the story of the corporate criminal trial of the century, the Arthur Andersen trial, and how the very complexity of corporate crimes can obscure fault.
From the ongoing suffering caused by the last global financial crisis, to environmental disasters like the Gulf spill, to the harmful flow of dirty money to cartels, terrorists, and totalitarian regimes, corporate crimes impact us all. That is why corporate prosecutions are themselves too important and too big to fail.
In today's New York Times, Ben Protess and Jessica Silver-Greenberg described new investigations of banks that had already settled prosecutions in the recent past - or they thought they had. New investigations raise a looming question whether recidivist banks will be treated differently or will have prior prosecution agreements scrapped. So far, that has not happened. On Tuesday, UBS, which has settled three agreements with prosecutors in the past five years, had its non-prosecution agreement related to the Libor probe extended for another year - UBS was apparently not found to have violated its terms. Which banks have been repeatedly prosecuted over the last decade? The Times cited to some of my data, developed in Too Big to Jail, describing how since 2001, "at least eight banks" have committed further offenses having entered an agreement with prosecutors.
Below is a list of those financial institutions that have entered more than one agreement with federal prosecutors from 2001 - present, with the type of agreement (deferred or non-prosecution or plea) and year in parenthesis. You can view the entire collection of such prosecution agreements here and here. Or click below on the links to read these particular prosecution agreements :
HSBC (NP 2001) (DPA 2012)
The cover story in this week's The Economist on the criminalization of corporate conduct. Displayed here are some of the data on corporate prosecutions that I present in "Too Big to Jail" - my book forthcoming in October. You can also see here for the first time estimates for corporate penalties in 2014 (the Credit Suisse and BNP Paribas cases, when finalized, will be record-breakers).
I appreciated this excerpt that The Economist quoted from my book:
“The big story of the 21st century is not corporate fines or corporate convictions, but prosecutors changing the ways that corporations are managed,” writes Mr Garrett in a forthcoming book, “Too Big to Jail: How Prosecutors Compromise with Corporations”. “This represents an ambitious new approach to governance—in which federal prosecutors help to reshape the policies and culture of entire institutions—much as federal judges oversaw school desegregation and prison reform in the heyday of the Civil Rights Era in the 1960s and 1970s.”
With another blockbuster corporate prosecution in the works, this past week Reuters ran a story on the rise in corporate fines over the past decade. They cited to my data and prepared a chart depicting some of it (above). But is this steady rise in federal corporate fines powerful evidence of tougher corporate prosecutions? In "Too Big to Jail" I present that data but then describe how it is not what it seems. The approximately 650% percent rise in corporate fines is striking. Billion dollar fines, once unprecedented, are imposed more regularly, though not often. However, that sweeping rise in fines is mostly due to a handful of blockbuster cases each year. Even in those remarkable cases, much of the money consists in payments to victims or to regulators and not fines strictly speaking. And the fines themselves are often far less than they could have been under the Sentencing Guidelines. But for the full story that lies behind the numbers you will have to wait for the book, which comes out in October.
The New York Times just ran a story in Dealbook describing work with the UVA First Amendment clinic and the law library to locate sealed corporate prosecution agreements - my "Too Big to Jail" book studies such cases. There are over 30 agreements, mostly non-prosecution agreements, of the over 300 that Jon Ashley of the UVA Law Library and I have identified, that have been "sealed" by agreement with the prosecutors. The clinic has filed a FOIA request seeking all of those agreements - after the DOJ ultimately decided to provide the single agreement requested last year in a test case. We view these corporate prosecutions as important, of public interest, and believe that basic information about how such prosecutions are resolved should be made public.
Sheriff J.E. "Chip" Harding, of Albemarle County, VA is proposing forming a Justice Commission in VA. He has offered to send copies of the book to law enforcement interested in reading more about why improvements can help convict the guilty and clear the innocent.