HomeBlogWoman Imprisoned for Life for Minor Drug Offense; Banking Giant Immune to Justice for Massive Drug Laundering
As a Ft Lauderdale criminal defense lawyer, I’m used to seeing this sort of disparity in the treatment of people who stand before the Bar of Justice — and I knew that the United States leads the world (we just passed China!) In per capita prison population; but did you also know that our very own “Florida”leads the U.S. in the same per capita (percentage of its people locked up!) prison population? Check out this news article and see how the bankers are treated with leniency and immunity, as compared to the rest of us commoners:
This two-tiered justice system was the subject of my last book, “With Liberty and Justice for Some”, and what was most striking to me as I traced the recent history of this phenomenon is how explicit it has become. Obviously, those with money and power always enjoyed substantial advantages in the US justice system, but lip service was at least always paid to the core precept of the rule of law: that – regardless of power, position and prestige – all stand equal before the blindness of Lady Justice.
It really is the case that this principle is now not only routinely violated, as was always true, but explicitly repudiated, right out in the open. It is commonplace to hear US elites unblinkingly insisting that those who become sufficiently important and influential are – and should be – immunized from the system of criminal punishment to which everyone else is subjected.
Worse, we are constantly told that immunizing those with the greatest power is not for their good, but for our good, for our collective good: because it’s better for all of us if society is free of the disruptions that come from trying to punish the most powerful, if we’re free of the deprivations that we would collectively experience if we lose their extraordinary value and contributions by prosecuting them.
This rationale was popularized in 1974 when Gerald Ford explained why Richard Nixon – who built his career as a “law-and-order” politician demanding harsh punishments and unforgiving prosecutions for ordinary criminals – would never see the inside of a courtroom after being caught committing multiple felonies; his pardon was for the good not of Nixon, but of all of us. That was the same reasoning hauled out to justify immunity for officials of the National Security State who tortured and telecom giants who illegally spied on Americans (we need them to keep us safe and can’t disrupt them with prosecutions), as well as the refusal to prosecute any Wall Street criminals for their fraud (prosecutions for these financial crimes would disrupt our collective economic recovery).
A new episode unveiled on Tuesday is one of the most vivid examples yet of this mentality. Over the last year, federal investigators found that one of the world’s largest banks, HSBC spent years committing serious crimes, involving money laundering for terrorists; “facilitat[ing] money laundering by Mexican drug cartels”; and “mov[ing] tainted money for Saudi banks tied to terrorist groups”. Those investigations uncovered substantial evidence “that senior bank officials were complicit in the illegal activity.” As but one example, “an HSBC executive at one point argued that the bank should continue working with the Saudi Al Rajhi bank, which has supported Al Qaeda.”
“US authorities defended their decision not to prosecute HSBC for accepting the tainted money of rogue states and drug lords on Tuesday, insisting that a $1.9bn fine for a litany of offences was preferable to the ‘collateral consequences’ of taking the bank to court. . . .
“Announcing the record fine at a press conference in New York, assistant attorney general Lanny Breuer said that despite HSBC”s ‘blatant failure’ to implement anti-money laundering controls and its wilful flouting of US sanctions, the consequences of a criminal prosecution would have been dire.
“Had the US authorities decided to press criminal charges, HSBC would almost certainly have lost its banking licence in the US, the future of the institution would have been under threat and the entire banking system would have been destabilised.
“HSBC, Britain’s biggest bank, said it was ‘profoundly sorry’ for what it called ‘past mistakes’ that allowed terrorists and narcotics traffickers to move billions around the financial system and circumvent US banking laws. . . .
“As part of the deal, HSBC has undertaken a five-year agreement with the US department of justice under which it will install an independent monitor to assess reformed internal controls. The bank’s top executives will defer part of their bonuses for the whole of the five-year period, while bonuses have been clawed back from a number of former and current executives, including those in the US directly involved at the time.
“John Coffee, a professor of law at Columbia Law School in New York, said the fine was consistent with how US regulators have been treating bank infractions in recent years. ‘These days they rarely sue individuals in any meaningful way when the entity will settle. This is largely a function of resource constraints, but also risk aversion, and a willingness to take the course of least resistance,’ he said.”
DOJ officials touted the $1.9 billion fine HSBC would pay, the largest ever for such a case. As the Guardian’s Nils Pratley noted, “the sum represents about four weeks’ earnings given the bank’s pre-tax profits of $21.9bn last year.” Unsurprisingly, “the steady upward progress of HSBC’s share price since the scandal exploded in July was unaffected on Tuesday morning.”
The New York Times Editors this morning announced: “It is a dark day for the rule of law.” There is, said the NYT editors, “no doubt that the wrongdoing at HSBC was serious and pervasive.” But the bank is simply too big, too powerful, too important to prosecute.
That’s not merely a dark day for the rule of law. It’s a wholesale repudiation of it. The US government is expressly saying that banking giants reside outside of – above – the rule of law, that they will not be punished when they get caught red-handed committing criminal offenses for which ordinary people are imprisoned for decades. Aside from the grotesque injustice, the signal it sends is as clear as it is destructive: you are free to commit whatever crimes you want without fear of prosecution. And obviously, if the US government would not prosecute these banks on the ground that they’re too big and important, it would – yet again, or rather still – never let them fail.
But this case is the opposite of an anomaly. That the most powerful actors should be immunized from the rule of law – not merely treated better, but fully immunized – is a constant, widely affirmed precept in US justice. It’s applied to powerful political and private sector actors alike. Over the past four years, the CIA and NSA have received the same gift, as have top Executive Branch officials, as has the telecom industry, as has most of the banking industry. This is how I described it in “With Liberty and Justice for Some”:
“To hear our politicians and our press tell it, the conclusion is inescapable: we’re far better off when political and financial elites – and they alone – are shielded from criminal accountability.
“It has become a virtual consensus among the elites that their members are so indispensable to the running of American society that vesting them with immunity from prosecution – even for the most egregious crimes – is not only in their interest but in our interest, too. Prosecutions, courtrooms, and prisons, it’s hinted – and sometimes even explicitly stated – are for the rabble, like the street-side drug peddlers we occasionally glimpse from our car windows, not for the political and financial leaders who manage our nation and fuel our prosperity.
“It is simply too disruptive, distracting, and unjust, we are told, to subject them to the burden of legal consequences.”
That is precisely the rationale explicitly invoked by DOJ officials to justify their decision to protect HSBC from criminal accountability. These are the same officials who previously immunized Bush-era torturers and warrantless eavesdroppers, telecom giants, and Wall Street executives, even as they continue to persecute whistleblowers at record rates and prosecute ordinary citizens – particularly poor and minorities – with extreme harshness even for trivial offenses. The administration that now offers the excuse that HSBC is too big to prosecute is the same one that quite consciously refused to attempt to break up these banks in the aftermath of the “too-big-to-fail” crisis of 2008, as former TARP overseer Neil Barofsky, among others, has spent years arguing.
And, of course, these HSBC-protectors in the Obama DOJ are the same officials responsible for maintaining and expanding what NYT Editorial Page editor Andrew Rosenthal has accurately described as “essentially a separate justice system for Muslims,” one in which “the principle of due process is twisted and selectively applied, if it is applied at all.” What has been created is not so much a “two-tiered justice system” as a multi-tiered one, entirely dependent on the identity of the alleged offender rather than the crimes of which they are accused.
Having different “justice systems” for citizens based on their status, wealth, power and prestige is exactly what the US founders argued most strenuously had to be avoided (even as they themselves maintained exactly such a system). But here we have in undeniable clarity not merely proof of exactly how this system functions, but also the rotted and fundamentally corrupt precept on which it’s based: that some actors are simply too important and too powerful to punish criminally. As the Nobel Prize-winning economist Joseph Stiglitz warned in 2010, exempting the largest banks from criminal prosecution has meant that lawlessness and “venality” is now “at a higher level” in the US even than that which prevailed in the pervasively corrupt and lawless privatizing era in Russia.
Having the US government act specially to protect the most powerful factions, particularly banks, was a major impetus that sent people into the streets protesting both as part of the early Tea Party movement as well as the Occupy movement. As well as it should: it is truly difficult to imagine corruption and lawlessness more extreme than having the government explicitly place the most powerful factions above the rule of law even as it continues to subject everyone else to disgracefully harsh “justice”. If this HSBC gift makes more manifest this radical corruption, then it will at least have achieved some good.
“‘I remember my mom crying out and asking the Lord why,’ said Ms. George, now 42, in an interview at the Federal Correctional Institution in Tallahassee. ‘Sometimes I still can’t believe myself it could happen in America.'”
As the NYT notes – and read her whole story to get the full flavor of it – this is commonplace for the poor and for minorities in the US justice system. Contrast that deeply oppressive, merciless punishment system with the full-scale immunity bestowed on HSBC – along with virtually every powerful and rich lawbreaking faction in America over the last decade – and that is the living, breathing two-tiered US justice system. How this glaringly disparate, and explicitly status-based, treatment under the criminal law does not produce serious social unrest is mystifying.