Unless one is related to someone unjustly killed by the police these days, it seems that nobody is angered about what goes on in our society. I guess that everyone's head is into whatever comes up on their I Phone.
The problem is that as lawyer, I am forced to try to rationalize the irrational for my clients.
Take for instance, my clients who hired a financial advisor and lost more than half a million in a Ponzi scheme that the advisor's brokerage firm was promoting. I look up the securities firm's record when it comes to hundreds of regulatory infractions and arbitrations and find tens of millions of dollars spent in fines and settlements. Not once have I found that the firm's license has been lifted by regulators. This is consistent with the Bush "Too Big to Fail" doctrine. So much for the free market. Taxpayers subsidized reckless banking and securities behavior by executives paid way too much by any standard; executives who've learned nothing.
Now, the Obama Justice Department has learned something that we've long known, that certain banking and securities firms bear a resemblance to the mafia when it comes to manipulating interest rates in true racketeering fashion. They've already paid billions in fines. Apparently it's the cost of doing business and our revolving door regulators, so often connected to those institutions, never put them out of business. Accordingly our Attorney General touts the recent criminal pleas and fines totaling $5.5 billion of JPMorgan Chase, Citicorp, UBS, Barclays and the Royal Bank of Scotland. Obama has taken us from "Too Big to Fail" to "Too Rich for Jail," missing a crucial component of what criminal law is supposed to be about. Criminal law is supposed to address wrongs against society. There is no question about it. These banks have harmed society at large. However a corporation is an entity. The entity does things as a result of humans; its agents. Criminal law involves individual responsibility and individual punishment. Accompanying the lack of corporate remorse is the lack of individual responsibility. The racketeers escape jail and pay fines with other people's money; shareholders money. Moreover, you can't put a corporation in jail. It's a great deal.
Now there is talk that perhaps when it comes to the GM faulty ignition deaths that there, too, there will be a record fine and perhaps jail time. Does this mean individual responsibility will be realized? Don't bet on it. More than thirty years ago I had a design defect case against a major car maker that has provided a lasting insight into the industry. In my case, the manufacturer knew that there would be injuries and death, monetized them and decided that it would be cheaper to pay the claims that spend the few dollars on correcting the problem. As in the asbestos litigation, incriminating information can be buried deep. Then and now, the corporate defendants settle cases and stamp all of the documents they had to provide plaintiffs as being "confidential and proprietary" requiring successive plaintiffs' lawyers to pay "seek" and "hide" as opposed to being able to share information from cases that have come before. Yet this has been the process embraced by senior management whether it has been in the cigarette, auto, or asbestos industries. It's been a well-established game. My bet is that if anyone from GM is to get an actual sentence of any kind, it will be some sacrificial lamb who was in the law department. He'll probably have to wear a device restricting him to his home, his golf club, winter and summer vacation homes.
So what do I say to my young adult client, who got into a fight with his brother inside their own home, and has been charged with multiple counts of assault? Regardless of whether he may win at trial, the filing of charges alone promises to deprive him of his chosen career as a paramedic. I don't see any of the offending banks' CEOs losing their positions. Unlike those criminal banks he may have to do jail time. And unlike those who ran the criminal enterprises, he and his family without ready access to shareholder's money, will have to bear the expense of a defense and possible fines in the event that there is a conviction.
Again, what do I tell my young client facing the justice system for the first time? What about fundamental fairness? Unfortunately I have to tell him that, all too often, I navigate the sewers.
