Public frustration is growing over the lack of criminal prosecution of Wall Street firms and executives for the 2008 financial crisis.

At the same time, those same Wall Street firms, their lawyers, and many academics argue that our justice system is “overcriminalized.”

Now comes Wayne State University Law Professor Peter Henning with a paper titled Making Sure “The Buck Stops Here”: Barring Executives for Corporate Violations.

“The criminal law is a poor means to engage in oversight of corporate governance, especially for senior managers who are largely insulated from the day-to-day decision-making that triggers violations,” Henning writes.

Instead of criminal prosecution, Henning proposes enhancing the authority of the Securities and Exchange Commission (SEC) to seek the removal of executives when the company has engaged in persistent or serious misconduct, “even if the individuals were not directly implicated in a violation.”

“This authority already exists in a limited form in certain industries, and a wider application of it could be a way to address concerns about managerial accountability for corporate criminal conduct,” Henning writes.

Despite public outrage over Wall Street wrongdoing, Henning doesn’t see a path to criminal prosecution.

Henning says “it is unlikely that any corporate executives will be charged for crimes related to how they managed – or mismanaged –companies and dealt with investors in the months leading up to the financial crisis.”

“The reason for the absence of any high-profile prosecutions of Wall Street executives should not reflexively be attributed to investigators and prosecutors failing to do their jobs diligently,” Henning writes.

“The better answer could well be that they did their jobs, and decided the evidence was insufficient to prove a criminal violation. While an acquittal vindicates a defendant, the cost from a prosecution goes far beyond just the verdict. So the absence of criminal prosecutions targeting Wall Street executives may well show that prosecutors are doing their jobs, and even supports the proposition that the malady of overcriminalization may be recognized by prosecutors in the Department of Justice through their apparent decision to hold off on pursuing the types of ‘show trials’ that can be viewed as pandering to the public thirst for what Secretary of the Treasury Timothy Geithner called “Old Testament justice.”

But Henning says there are better ways to hold executives accountable for corporate wrongdoing.

“If the buck truly does stop with the chief executive and senior managers, then there should be a means to hold them accountable for corporate violations by giving the government the authority to remove them from office and prohibit them from again sitting atop an organization when there was significant or persistent wrongdoing on their watch,” Henning writes.

“The proposal to expand the SEC’s authority to seek to bar corporate executives when there has been significant or persistent misconduct during their tenure will not necessarily strike fear in the hearts of corporate executives, but then it is not intended to. This authority would allow the government to police corporate management that tolerates or turns a blind eye to misconduct, all the while mouthing the usual platitudes that compliance is a priority for the business.”

“It is a modest step in enhancing oversight of management that does not interfere with the conduct of a business while allowing for executives to be held accountable when the corporation engages in significant misconduct that cannot be traced directly to them as long as it occurred on their watch.”