Tuesday, April 23, 2013

Bankers Above the Law II: Criminal Affirmance Runs Amok

Professor Mary Ramirez recently posted her University of Connecticut Law Review article on SSRN. It is available for free download.  Here is the abstract:

Recent financial scandals and the relative paucity of criminal prosecutions against elite actors that benefited from the crisis in response suggest a new reality in the criminal law system: some wrongful actors appear to be above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis. This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors. Their incumbency in power results in massive deadweight losses due to the distorted incentives they now face. Further, this undermines the legitimacy of the rule of law and encourages even more lawlessness among the entire population, as the declination of prosecution advertises the profitability of crime. These considerations transcend deterrence as well as retribution as a traditional basis for criminal punishment. Affirmance is far more costly and dangerous with respect to the crimes of powerful elites that control large organizations than can be accounted for under traditional notions of deterrence. Few limits are placed on a prosecutor’s discretionary decision about whom to prosecute, and many factors against prosecution take hold, especially in resource-intensive white collar crime prosecutions. This article asserts that prosecutors should not decline prosecution in these circumstances without considering its potential affirmance of crime. Otherwise, the profitability of crime promises massive future losses.

The article does not include the deeply disturbing testimony of Attorney General Eric Holder that banks and criminals employed by banks are not subject to criminal procecustions on the same basis as ordinary citizens because that absurd testimony is too recent. Still, Holder's admission that some banks and their criminal employees are too big to jail certainly raises the importance and timliness of Professor Mary Ramirez' most recent installment seeking to restore balance to a ridiculously out of whack criminal "justice" system. 

What does it say about a society that rounds up young people of color by the thousands for relatively innocuous behavior while white collar criminals on Wall Street can crash global capitalism and corrupt the pinnacle of our economy with impunity? So much for any post-racial America.

The social construct of race still thrives in America and nowhere is this more obvious than in policies relating to incarceration.

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