Collateral Consequences Weighed for Corporations, Not for Individuals

by RUSSELL MOKHIBER

In case you had any doubt that federal prosecutors favor corporations over individuals, check out Mythili Raman’s testimony before a House hearing this week.

Raman is the acting chief of the Criminal Division at the Department of Justice.

She appeared before the Oversight and Investigations Subcommittee of the House Financial Services Committee.

The title of the hearing — “Who Is Too Big to Fail: Are Large Financial Institutions Immune from Federal Prosecution?”

In a nutshell, the answer is — Yes they are immune from federal prosecution.

But it’s not just them.

It’s the vast majority of major corporate criminals, which now are granted deferred and non prosecution agreements when twenty years ago they were forced to plead guilty.

This sea change in corporate crime practice was ushered in by then Deputy Attorney General Holder in 1999 when he drafted the Principles of Federal Prosecution of Business Organizations. (Holder has been through the revolving door since — over to Covington & Burling to defend the corporations he’s now charged with prosecuting, then back to the Justice Department as Attorney General under President Obama. And no doubt, soon back to Covington.)

Under the subsequent rewrites of the Holder memo, federal prosecutors must now take into consideration the collateral consequences of a criminal prosecution on a major corporation including “whether there is disproportionate harm to shareholders, pension holders, employees, and others not proven personally culpable, as well as impact on the public arising from the prosecution.”

And this, along with the the eight other factors that prosecutors must take into account before prosecuting a corporation tilts the balance away from prosecution and toward deferred and non prosecution agreements.

Raman made it a point to emphasize twice during her testimony that individuals are not given the same consideration.

“For individuals, collateral consequences never enter into the equation,” Raman said.

Why not?

After all, collateral consequences for individuals can be devastating.

According to the American Bar Association Task Force on Collateral Consequences, the individual convict “may be ineligible for many federally-funded health and welfare benefits, food stamps, public housing, and federal educational assistance.”

“His driver’s license may be automatically suspended, and he may no longer qualify for certain employment and professional licenses.  If he is convicted of another crime he may be subject to imprisonment as a repeat offender.  He will not be permitted to enlist in the military, or possess a firearm, or obtain a federal security clearance.  If a citizen, he may lose the right to vote. If not, he becomes immediately deportable.”

And Raman says that federal prosecutors can’t take these into consideration.

But must take the collateral consequences of a corporate conviction into consideration.

Why the difference?

Because the corporate crime lobby has marinated the justice system.

And morphed our criminal justice system from one that was meant to deliver equal justice for all to one where corporate criminals reign supreme.

“You can imagine why, when I see some of the biggest banks in the world, who get a slap on the wrist, for laundering drug money from the drug cartels, and (their executives) are not going to jail” Congresswoman Maxine Waters (D-California) told Raman at the hearing. “And then we have all of these young people getting arrested, some of them not criminal, just stupid, getting involved with small amounts of cocaine. And yet we have some of the richest, most powerful banks in the world laundering drug money from the drug cartels. Why don’t they (the bank executives) go to jail?”

Raman started to answer and Waters cut her off.

“We know what you do,” Waters said. “It’s what you do that we don’t like. What you do is — they get fined. And it’s a cost of doing business.”

Russell Mokhiber edits the Corporate Crime Reporter.

Russell Mokhiber edits the Corporate Crime Reporter.

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