Criminal Accountability For Corporate Wrong-Doing? Elizabeth Warren Says It's About Time

It sickens me to see politicians get off with slaps on the wrist when they are caught in criminal activities-- even child rape. Same goes for banksters, corporate executives and the super-wealthy. These people should be punished more harshly, not less harshly because of their place in the social strata. Tuesday Elizabeth Warren laid out a plan, in an OpEd for the Washington Post that would bring more justice to the criminal justice system. Yesterday, she introduced legislation-- the Corporate Executive Accountability Act-- to make it easier to jail corporate executives at companies convicted of serious wrongdoing. 

Opening unauthorized bank accounts. Cheating customers on mortgages and car loans. Mistreating service members. If you can dream up a financial scam, there’s a good chance that Wells Fargo ran it on its customers in recent years. Last week, after years of pressure, the company finally parted ways with its second chief executive in three years. But that’s not nearly enough accountability. It’s time to reform our laws to make sure that corporate executives face jail time for overseeing massive scams.

In 2016, after the Wells Fargo fake-accounts scam came to light, I called out then-chief executive John Stumpf for gutlessly throwing workers at the bank under the bus-- and told him he should resign. Weeks later, he did. When Wells Fargo elevated longtime senior executive Tim Sloan to replace Stumpf, I told Sloan he should be fired for his role in enabling and covering up the fake-accounts scam. For years, I pressured federal regulators, urging Sloan’s dismissal, and last week Sloan “retired.”

Don’t get me wrong. I’m glad Sloan and Stumpf aren’t in charge anymore. But this isn’t real accountability. When a criminal on the street steals money from your wallet, they go to jail. When small-business owners cheat their customers, they go to jail. But when corporate executives at big companies oversee huge frauds that hurt tens of thousands of people, they often get to walk away with multimillion-dollar payouts.

Too often, prosecutors don’t even try to hold top executives criminally accountable. They claim it’s too hard to prove that the people at the top knew about the corporate misconduct. This culture of complicity warps the incentives for corporate leaders. The message to executives? So long as you bury your head in the sand, you can keep collecting fat bonuses without risk of facing criminal liability.

Even when in-house lawyers flag conduct that skirts the law, there’s little reason for executives to listen. The executives know that, at worst, the company will get hit with a fine-- and the money will come out of their shareholders’ pockets, not their own.

It doesn’t have to be this way. With sustained resources and a commitment to enforcing the law, we can bring more cases under existing rules. Beyond that, we should enact the Ending Too Big To Jail Act, which I introduced last year. That bill would make it easier to hold executives at big banks accountable for scams by requiring them to certify that they conducted a “due diligence” inquiry and found that no illegal conduct was occurring on their watch. This would force executives to look for wrongdoing or face prosecution for filing false certifications with the government. The proposal would also create a permanent and well-funded unit dedicated to investigating financial crimes.

But we can go further still. Wednesday, I’m proposing a law that expands criminal liability to any corporate executive who negligently oversees a giant company causing severe harm to U.S. families. We all agree that any executive who intentionally breaks criminal laws and leaves a trail of smoking guns should face jail time. But right now, they can escape the threat of prosecution so long as no one can prove exactly what they knew, even if they were willfully negligent.

If top executives knew they would be hauled out in handcuffs for failing to reasonably oversee the companies they run, they would have a real incentive to better monitor their operations and snuff out any wrongdoing before it got out of hand.

My proposal builds on existing laws that impose criminal liability on negligent executives in certain areas. The Food, Drug, and Cosmetic Act and the Clean Air Act hold top corporate executives criminally accountable if, as a result of their negligence, companies distribute misbranded drugs or pollute the air. My proposal would impose similar criminal liability for negligent executives of any company with more than $1 billion in annual revenue in a variety of circumstances, including if that company is found guilty of a crime or is found liable for a civil violation affecting the health, safety, finances or personal data of 1 percent of the U.S. population or 1 percent of the population of any state.

It has been about 10 years since the financial crisis cost millions of people their homes, their jobs and their savings, and not one big-bank CEO has gone to prison-- or even been prosecuted. Tens of thousands of Americans have died after overdosing on commonly prescribed opioids, but not a single major pharmaceutical executive has gone to prison for their role in this tragedy. Corporate America needs a wake-up call.

Four words are engraved over the front door of the Supreme Court: “equal justice under law.” It’s the fundamental principle that’s supposed to drive our legal system. But it’s not equal justice when a kid with an ounce of pot can get thrown in jail while a wealthy executive can walk away with a bonus after his company cheats millions of people. Personal accountability is the only way to ensure that executives at corporations will think twice before ignoring the law. It’s time to stop making excuses and start making real change.

Yesterday, her office explained that "executives at large corporations often escape prosecution because it is hard to demonstrate that they are personally aware of all their company's actions-- and establishing knowledge is a critical element of proving most crimes. However, some federal laws, including the Food, Drug, and Cosmetic Act and the Clean Air Act, already impose criminal liability on corporate leaders when a company's negligence causes massive harm-- regardless of whether leaders personally approved actions that broke the law." Her Corporate Executive Accountability Act builds on these existing federal statues and makes it easier to send executives to jail for serious crimes by expanding criminal liability to negligent executives of corporations with more than $1 billion in annual revenue that:

• Are found guilty, plead guilty, or enter into a deferred or non-prosecution agreement for any crime.
• Are found liable or enter a settlement with any state or Federal regulator for the violation of any civil law if that violation affects the health, safety, finances, or personal data of 1% of the American population or 1% of the population of any state.
• Are found liable or guilty of a second civil or criminal violation for a different activity while operating under a civil or criminal judgment of any court, a deferred prosecution or non-prosecution agreement, or settlement with any state or Federal agency.

Meanwhile the Ending Too Big to Jail Act, which she reintroduced yesterday, makes it easier to hold financial executives accountable by:

• Creating a permanent investigative unit for financial crimes within the Treasury Department by giving the Special Inspector General for the bailout a new mission-- prosecuting financial crimes.
• Requiring executives at big banks larger than $10 billion to certify that there is no criminal conduct or civil fraud within the institution, making it easier to prove wrongdoing if it is later discovered.
• Putting deferred prosecution agreements under the jurisdiction of judges so that they can ensure that the agreements are in the public interest and can supervise their implementation.