by Barry Goldman
Rich and powerful people commit a vast amount of crime. According to Big Dirty Money: The Shocking Injustice and Unseen Cost of White Collar Crime, by law professor Jennifer Taub:
White collar crime in America, such as fraud and embezzlement, costs victims an estimated $300 billion to $800 billion per year. Yet street-level “property” crimes including burglary, larceny, and theft, cost us far less – around $16 billion annually, according to the FBI.
But rich and powerful people do not go to prison. There are 2.3 million people incarcerated in the United States. None of them are members of the Sackler family, despite Purdue Pharma being responsible for hundreds of thousands of deaths. The Sacklers have had to pay out billions of dollars for pushing OxyContin, but they have been able to keep billions more. And none of them has done any time.
This week Martin Winterkorn, formerly the head of Volkswagen and Germany’s highest-paid executive, went on trial. He led the company when it manufactured 9 million vehicles designed to cheat on emissions tests. Readers will recall that the cars and trucks were equipped with “defeat devices” that switched on pollution controls only when the vehicles were being tested. When they were out on the road the vehicles spewed many times the allowable amounts of pollutants and caused unknown damage to public health around the world. Winterkorn’s trial is starting nine years after he resigned from Volkswagen. He is not expected to serve any prison time.
None of the greedy bastards actually responsible for the 2008 financial crisis went to prison. According to the New York Times:
the largest man-made economic catastrophe since the Depression resulted in the jailing of a single investment banker — one who happened to be several rungs from the corporate suite at a second-tier financial institution.
If you pay any attention to the news you can supply your own examples of this pattern. Wells Fargo and ExxonMobil come immediately to mind, but the list is very long.
The Justice Department is either unwilling or unable to convict high level executives. There is a book on the subject. It’s called The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives, by Jesse Eisinger, a Pulitzer-winning reporter at ProPublica. There are a lot of reasons rich and powerful people don’t go to prison. One is that they tend to have highly skilled lawyers. In some circles keeping rich people out of prison is considered legitimate work. It is certainly lucrative work.
To be fair, the Justice Department has limited resources. It has to triage cases based on whether they are winnable, whether they are an efficient use of those limited resources, and whether they will be perceived as a good use. Cases are also evaluated on whether or not they are “righteous.” But righteousness alone will not justify a prosecution. Perhaps in an ideal world, righteousness would have priority. But we do not live in an ideal world.
It’s an old story. As the 17th century poem has it:
The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from the goose.
Maybe this is just a fact of life. ‘Twas ever thus. Some people are “too big to jail,” and there’s nothing to be done about it. But maybe that’s not entirely true.
The Volkswagen scam was discovered by a group of graduate students at West Virginia University working with a $70,000 grant. Kids, in other words, working for peanuts.
Law schools have clinics that allow students to learn something about legal practice and to do some social good. There are landlord/tenant clinics, family law clinics, immigration clinics, and more. They provide law students with valuable experience and provide indigent clients with legal services they would not otherwise be able to access. These programs are similar to the indigent clinics run by medical and dental schools. A cynic might say they are a way for students to learn their craft by practicing on poor people, but the good they do is very real.
Other law students work for The Innocence Project. They try to get people out of prison. So far, according to their website, the Project has, “helped free or exonerate 250 people who’ve collectively spent over 3,800 years wrongly incarcerated.”
These are all worthy endeavors. I have nothing but respect and admiration for them. But they are all concentrated on one side of the equation. They all seek to comfort the afflicted. I’m interested in an effort to afflict the comfortable. Suppose we could design a project that would be the obverse of The Innocence Project. Instead of working to free the wrongly incarcerated, it would work to prosecute the wrongly un-incarcerated. Suppose we could put an army of law students to work bringing white collar criminals to justice. Imagine a Righteousness Project.
A project like that could harness the energy and idealism of youth. It could teach valuable research, investigation, and writing skills. And if the research was thorough enough, the investigations were dogged enough, and the writing was compelling enough, perhaps it could shame the legal apparatus into taking real action.
Where would the funding come from for such a project? As it happens, the phone rang as I was drafting this piece. It was a representative from Equal Justice America. She was looking for donations to fund law students who were working for the summer providing legal services to indigent clients. There is no reason similar programs couldn’t fund a Righteousness Project. It’s true that rich and powerful people will resist. Of course they will. If they didn’t resist it would be a sign that the program wasn’t doing anything.
But imagine if righteousness were the point. It could flip the script. Instead of Matthew 25:29:
To everyone who has, more will be given, and he will have abundance; but from him who does not have, even what he has will be taken away.
We could inspire law students with Amos 5:24:
Let justice run down like water, And righteousness like a mighty stream.
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