Orange is NOT the new black for guilty Wall Street CEOs.

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The U.S. Justice Department announced last week that five of the largest banks in the world will plead guilty to felony charges that they joined forces to manipulate global financial markets. Following a multi-year investigation into their activities that led up to and during the financial crisis and crash of 2008, these banks will be fined nearly $5.8 billion in total as part of the federal plea agreement.

But what these disgraced CEOs – and soon to be convicted felons - won’t be doing is going to jail. In fact, no CEO of any big bank has spent even a day behind bars. There have been plenty of hedge fund tricksters and mortgage scammers locked up, but apparently, orange is not the new black when it comes to the biggest financial criminals in the United States.

There crimes definitely warrant it. Four of the five banks, Citicorp, JPMorgan Chase, Barclays, and The Royal Bank of Scotland, are pleading guilty to manipulation of the price of U.S. dollars and euros in foreign currency markets. According to federal court records, the four banks conspired to purposely manipulate these markets via online chat rooms, calling themselves ‘The Cartel.” And the fifth bank, USB AG, is admitting guilt for manipulating the London Interbank Offered Rate (LIBOR) and other benchmark interest rates.

And while these banks will be rattled with fines and reprimands, their CEO and upper management remain largely unscathed. In fact, federal prosecutors almost never even bring criminal charges against the top executives and CEOs of large corporations, no matter who they are. That leaves regular citizens scratching their heads at the unlawful inconsistency of white-collar financial crimes. After all, if you or I would be thrown in jail and locked up for robbery or theft, why do the Wall Street suits get to walk? 

It wasn’t always this way. After the stock market crash of 1929 and the subsequent Great Depression, public outraged led to a hearing that landed the head of the New York Stock Exchange in prison.

And during the savings and loan debacle of the 1980s, 1,100 people were arrested and did time, including top executives. In the early 1990s, the Nasdaq implosion from accounting scandals led to executives from WorldCom, Enron, Qwest, and Tyco sent to prison.

Aside from the recently-announced guilty plea, Goldman Sachs executives won’t be patrolling the rec yard at any federal institution for their part in selling toxic mortgage securities to clients while simultaneously betting on them to fail with the bank’s money. And execs at the bank HSBC not only broke the law with unfair financial practices, but profited by setting themselves up as the preferred bank of Mexican and Colombian drug cartels and rogue nations under U.S. sanctions, including Iran and Libya. Yet other than a parade of fines and rebukes, they remain free to enjoy their lives and even continue in business.

So why are out modern-day financial criminals still wearing black suits and ties, not orange prison jump suits? There are several reasons, but it starts with the U.S. justice department. In the past they were much harder on financial criminals from top to bottom, but over the last decade, they’ve shifted tactics to try and seek settlements with the accused and their organizations, not push for jail time. A CEO will largely cooperate with a plea agreement that entails fines, but every time jail time is on the table, they’ll “lawyer up” with phalanxes of the most proficient, high-priced legal teams in the country. 

A jury trial can take years or even decades to conclude at the cost of the taxpayer, and it’s often nearly impossible to even explain the finer points of finance and markets and trading to lay people. Furthermore, the Fed’s lawyers pale in acumen and experience to these big shot corporate lawyers, so convictions aren’t even a given once they go to trial. And critical resources, funds, and manpower were better utilized chasing international terrorists, not domestic white-collar criminals. 

And the bottom line is that although it seems like an open and shut, black and white matter, proving the legal intricacies of criminal activity is a high mountain to climb. Unethical, irresponsible, reckless and risky, and poor management practices are all reason for reprimand and fines, but the leap to outright criminal fraud is hard to make, thanks to plausible deniability. 

That’s why blatantly fraudulent charlatans like Bernie Madoff and Allen Stanford were sentenced to jail time, but the likes of Angelo Mozilo, CEO of the subprime lender Countrywide who faced a criminal investigation in 2012, came out smelling like roses after prosecutors couldn’t prove criminal behavior.

Apparently, the White House’s concern for the greater good came into play in keeping some of these CEOS intact, as they were worried that too big of a blow to these banks would “shake up” an already fragile financial system.

 “I am concerned,” said deputy attorney general Eric Holder. “That the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if we do prosecute — if we do bring a criminal charge — it will have a negative impact on the national economy, perhaps even the world economy.” 

So the trend to keep CEOS and top executives out of jail continued. From 2004 to 2012, the Justice Department has settled on 242 deferred and nonprosecution agreements with corporations and their execs, compared to only 26 in the 12 years prior. 

Sure, JPMorgan Chase, Citigroup, Lehman Brothers, AIG, Countrywide and many others have shelled out nearly $200 billion in fines, but the top culprits remain free and able to work again in the financial sector, even if they are charged with felonies.

It hardly seems fair, as we the people, many of us victims of these financial crimes in some way, are reduced to playing the part of bystanders. We can only hope that for the next crooked CEO of a big bank or company, orange will be the new black. 

Comments (1)

Sandy Padula and Norm Padula, JD, GRI
HomeSmart Realty West - Carlsbad, CA
Presence, Persistence & Perseverance

Jeff Sipes Holder did nothing to bring these banks to justice. It was all a shell game. People need to understand that banks are not their friends.

Jul 09, 2015 08:19 PM