The US justice system is notorious for its high incarceration rate and tough sentences, even for low level and non-violent offenses. The US now has more people incarcerated than were in the gulags in the Soviet Union under Stalin. Prison has become such an important and powerful concern that the term “prison-industrial complex” has entered the American political lexicon — highlighting the increasing influence of business and political groups invested in the prison economy.
But one group of criminals has largely escaped the hungry machinery of the prison-industrial complex, white collar criminals. In fact, not only are fewer white collar criminals being incarcerated, they are not even being prosecuted in the first place.
According to a study at the University of Syracuse using data from the Justice Department, federal prosecutions of white collar criminals are at a twenty year low. The decline began in the Clinton Administration and has continued to drop ever downward.
As the study notes “The decline in federal white collar crime prosecutions does not necessarily indicate there has been a decline in white collar crime. Rather, it may reflect shifting enforcement policies by each of the administrations and the various agencies, the changing availabilities of essential staff and congressionally mandated alterations in the laws.”
This seems obviously true as the lull comes during one of the most damaging corporate crime waves in American history, where millions of Americans lost their homes and retirement earnings due to financial fraud by Wall Street banks. Furthermore, there has been a series of record-setting civil settlements between the government and the white collar criminals on Wall Street. So the decline in prosecutions is clearly not the result of a decline in white collar crimes.
The shifting enforcement policies theory is also backed up by the words and actions of those within the enforcement agencies. The most notable example in recent years being former Attorney General Eric Holder and former DOJ Criminal Division head Lanny Breuer who offered the “Too Big To Jail” defense for their not pursuing criminal cases against the large Wall Street firms involved in white collar crime.
Both Holder and Breuer were Wall Street lawyers at the firm Covington and Burling before the 2008 financial crisis. During that time, some of the firm’s clients included Bank of America, Citigroup, JP Morgan Chase, Wells Fargo & Co and other banks involved in the mortgage industry that became ground zero for the 2008 financial crisis.
Covington and Burling was involved in the creation of the Mortgage Electronic Registration Systems or MERS, which was the source of numerous lawsuits and allegations of criminality during the so-called fraudclosure crisis where banks were using fraudulent paperwork to foreclose on homeowners.
Perhaps the drop in white collar crime prosecutions is not the result of a drop in white collar crime, but an increasing disinterest by politically appointed prosecutors to take on their former clients and friends.