When Massachusetts Sen. Elizabeth Warren (D) took to the Senate floor on Feb. 3, she delivered a speech chastising the American legal system: she declared that despite common claims of equal justice under the law and a single set of enacted laws, America in fact has two separate and unequal legal systems. As she described it, one “for big corporations, for the wealthy and the powerful.”
In the second system, used for wrongdoing by the powerful, government enforcers hesitate to be too tough, and regularly decline to bring criminal charges against executives of companies that have admitted felonies. It’s totally unlike the other legal system, which applies to everyone else, where the law is aggressively enforced with little concern for the consequences, so as when people are imprisoned for lengthy terms for minor drug charges.
If there were equal justice for all, Warren noted, a youth would not be thrown in jail for car theft while a company steals billions and its CEO receives not a jail sentence but a gigantic raise. Nor in a system of equal justice would someone with an opioid habit be jailed for buying pills from a street dealer while bankers escape any significant punishment for money-laundering almost $1 billion for a drug cartel.
Sen. Warren’s speech also spotlighted a brief report she had released a few days earlier, detailing cases in 2015 when the federal government found lawbreaking by major corporations and their executives but elected to go easy on them. That 12-page report, ‘Rigged Justice: How Weak Enforcement Lets Corporate Offenders Off Easy’; was prepared by Warren’s staff and contains 20 examples of corporate misconduct – bankers’ exchange rate price-fixing, manufacturers’ cover-up of product defects, pharmaceutical kickbacks, and much more – which in her view lacked adequate enforcement responses. (In an aside, the report notes Sen. Warren plans to make release of similar compilations of government leniency towards corporations and their executives an annual event.)
The report, as well as in her Senate speech and a similar New York Times op-ed article she contributed the same day, Sen. Warren took extended whacks at some federal enforcers she views as being asleep at the switch – for instance, she calls the Securities and Exchange Commission “particularly feeble” and says it suffers from “weak management.”
The central problem she identifies in the varied cases is that the government may impose fines but doesn’t require corporate admissions of guilt and rarely prosecute corporate executives. Further, the fines are a relative drop in the bucket to the corporate offenders, who may even be able to deduct a portion on their taxes.
Yet in her concern over corporate misdeeds, in my view, Sen. Warren seems to feel what needs to be done is to subject the mighty to the same system now used for everyone else, rather than to remedy the defects of that system.
While in passing refers to the current criminal justice system as “broken,” she did not sponsor the sentencing reform bill you’ll look in vain in this onslaught of publicity for proposals from her for creating a more rational, productive and fair system for everyone. Perhaps she believes that reform needs to wait until the corporate bigwigs are brought under the same unfair system.
Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com