Mary Kreiner Ramirez teaches law at Washburn University College of Law in Topeka, Kansas.
Ramirez has a decidedly Midwest point of view.
If you commit a crime, you should do the time.
Remarkably, it’s not a point of view held by many of her fellow law professors throughout the country.
The reason — Ramirez specializes in corporate crime.
And calling for criminal prosecution of major corporations doesn’t pay.
Calling for the corporate death penalty to deter corporate wrongdoing (Ramirez drafted a Corporate Death Penalty statute) won’t get you a speaking engagement at Harvard Law School.
Now Ramirez is out with another law review article titled “Criminal Affirmance: Going Beyond the Deterrence Paradigm to Examine the Social Meaning of Declining Prosecution of Elite Crime,” (Connecticut Law Review, 2012).
In it, Ramirez argues that some big corporations “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,” Ramirez writes.
“This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors.”
“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,” she says.
“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.”
Ramirez says that prosecutors should not decline prosecution in these circumstances without considering the potential affirmance of crime.
“Otherwise, the profitability of crime promises massive future losses,” she says.
Ramirez is married to Steve Ramirez, a professor of law at Loyola University in Chicago.
He’s just written a book titled Lawless Capitalism: The Subprime Crisis and the Case for an Economic Rule of Law, (NYU Press, 2013).
Together they are planning on writing a book tentatively titled “Corrupted Justice.”
So, federal prosecutors are corrupt?
“The thesis of the book is that justice has been corrupted by money,” Ramirez says. “We have now reached the point where major organizations like HSBC are caught engaged in crimes that involve money laundering, working with terrorist states — this is the kind of thing we would routinely go after with a vengeance.”
“If this were the drug trade, everybody would have been in jail and we would have forfeited their assets. Instead, we have the Justice Department explaining why they are not going to prosecute the bank, even though it’s a repeat offender.And there is no indication that any individual is going to be prosecuted.”
Earlier this month, Attorney General Eric Holder raised eyebrows when he said that some big banks may be too big to prosecute.
“I am concerned 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 you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy,” Holder told the Senate Judiciary Committee last week. “And I think that is a function of the fact that some of these institutions have become too large.”
What does Ramirez have to say to Attorney General Holder?
“We have prosecuted big banks before,” Ramirez said. “Look at the BCCI bank back in the 1980s. Individuals were prosecuted. And the bank went down. It was a large global institution like HSBC.”
“We have prosecuted them before without destroying the economy.”
“I am comfortable with putting a company out of business for serious wrongdoing,” Ramirez said. “But part of my proposal was to consider whether or not the death penalty is the proper punishment given possible harm to the economy or to individuals. I propose an alternative — bring in a trustee, get rid of top management, clean things up.”
“You would not have to impose the death penalty in all cases. You could look at it on a case by case basis.”
“During the thrift crisis, the government came in and shut down a lot of banks.”
But they weren’t these too big to fail banks.
“Well, with too big to fail, you’d have to break up the banks,” she said.
Ramirez says that affirmance is the opposite of deterrence — it flashes the green light to the corporate criminals.
“There are two sides to deterrence,” she says. “One is general deterrence. By punishing this individual or entity, we are sending a message — if you engage in this type of conduct, this will happen to you. We want to deter other people from engaging in that conduct.”
“Then there is specific deterrence. You tell the individual — you have engaged in this conduct. We need to punish you because you have to understand — you can’t do this or you will be punished again.”
“Affirmance is the opposite of deterrence. When one fails to punish, one affirms conduct. When prosecutors fail to pursue large organizations, or elite crime — because of concerns of too big to fail, or for whatever justification — when you fail to prosecute, you send the message that despite the fact that we have evidence of your criminality, we are going to allow you to continue without punishment.”
“We saw that with the mortgage crisis. No one was prosecuted, and the next thing you know we have forged documents being submitted to courts.”
“It affirms misconduct by the lawbreakers. But it’s worse. It advertises that the government is willing to look the other way when crimes are being committed. It’s willing to not pursue crimes that they have evidence of.”
[For the complete transcript of the Interview with Mary Ramirez, see 27 Corporate Crime Reporter 12(12), March 25, 2013, print edition only.]