We Should Have Jailed the Bankers After the Last Crisis

“Lock up the bankers” was more than a populist slogan. It was a demand for something better than a plutocratic order that allows the rich to do whatever they wish.

America’s justice system treats corporate malefactors with kid gloves while meting out cruel punishment on the poor. (Kena Betancur / Getty Images)

Perhaps the most revealing passage in Barack Obama’s 2020 memoir, A Promised Land, comes toward the end of his recollections on the 2009 financial crisis and his administration’s response to it. For Obama — who never once seems to have seriously considered a proactive or aggressive response to Wall Street chicanery — the dilemma his team faced had primarily to do with political management. As such, he tells us, they attempted to “straddle the line between the public’s desire for Old Testament justice and the financial markets’ need for reassurance.” The key moment comes later in the chapter as the former president reflects on the now common charge that he could and should have been tougher on Wall Street:  

If it were possible for me to go back in time and get a do-over, I can’t say that I would make different choices. In the abstract, all the various alternatives and missed opportunities that the critics offer up sound plausible, simple plot points in a morality tale. But when you dig into the details, each of the options they propose — whether nationalization of the banks, or stretching the definitions of criminal statutes to prosecute banking executives, or simply letting a portion of the banking system collapse so as to avoid moral hazard — would have required a violence to the social order, a wrenching of political and economic norms [my emphasis], that almost certainly would have made things worse. Not worse for the wealthy and powerful, who always have a way of landing on their feet. Worse for the very folks I’d be purporting to save. Best-case scenario, the economy would have taken longer to recover, with more unemployment, more foreclosures, more business closures. Worst-case scenario, we might have tipped into a full-scale depression.

Without litigating the administration’s entire response to what was then the worst economic crisis since the Great Depression, it’s worth underscoring the choice facing Obama as he himself chooses to render it. For the president and his advisors, public outrage toward Wall Street (and the corresponding desire to see executives put in jail) was ultimately driven by a kind of reductive moralism out of step with reality. The idea of “Old Testament justice,” in his telling, might have looked good on paper, but would have done nothing to make the wealthy lose any sleep and, still worse, would have ended up hurting the most vulnerable.   

It’s a cynical, self-interested, and unconvincing narrative, to be sure. But it also misrepresents a big part of the case for prosecuting white-collar criminals. “Lock them up!” certainly was a ubiquitous sentiment toward banks and bankers after the financial crisis, and no one can deny it had a lot to do with a simple (and entirely justified) popular desire for retribution. That was far from the whole story, though, and even a cursory glance at a few major cases of corporate malfeasance over the past decade shows us exactly why. 

The thought occurred to me after watching an episode of the excellent Netflix series Dirty Money, which chronicles — with admirable populist flair — various recent instances of sleaze and corruption. The show’s subjects are quite varied: the inflation of drug prices by pharma companies; Jared Kushner’s slumlord empire; the theft of more than three thousand tons of Canadian maple syrup; a major conflict of interest scandal that dethroned Malaysia’s prime minister and his long-ruling party; the litany of scams pulled off by Donald Trump before his entry into politics. Nonetheless, quite a few end up turning on the same basic theme for the simple reason that many of capitalism’s greatest hoaxes are structurally very similar: (1) a capitalist or a group of capitalists seek to maximize profits by any means necessary, circumventing legal or ethical impediments as needed; (2) those at the bottom — workers, consumers, renters, citizens — get hurt; (3) those responsible face minimal consequences. Lather, rinse, and repeat. 

The ur-episode in this regard is probably the series’ take on the scandal surrounding Wells Fargo, the supposed “golden child” of the banking industry that was discovered to have opened millions of accounts without customer permission, signed people up for credit cards they never asked for, overcharged black and Hispanic homeowners for mortgages, and forged consumer signatures (among other things). With a hat tip to the Wall Street Journal’s Emily Glazer, who doggedly reported on the Wells Fargo affair, the episode’s heroes are ultimately Yesenia Guitron and Kilian Colin, two rank-and-file employees who faced discipline for blowing the whistle on the company’s abusive and exploitative behavior. 

To inflate its value, Wells Fargo aggressively bullied its poorly paid tellers into selling as many new accounts as possible so that customers would be charged extra fees. The upshot was that low-wage workers themselves became the primary instruments of the firm’s unethical practices, sometimes with heartbreaking results that trouble them to this day. Given its extractive attitude toward employees, many also found themselves out of work (between 2011 and 2016, more than eight thousand were fired for failing to meet arbitrarily imposed sales quotas). 

In the end, the company issued a cringeworthy public apology, paid a $175 million settlement in 2012, and has since been compelled to fork over another $3 billion in additional penalties — still absolute peanuts considering its size. CEO John Stumpf, similarly, got off with a lifetime ban from work in the financial industry and a fine of $17.5 million. Though he’s since reportedly lost more than $70 million overall through forfeitures and clawbacks, Stumpf ultimately walked away with stock valued at $80 million, $60 million in salaries and bonuses, and a pension worth $22.7 million. In other words, he’s set for life, and has faced only the most superficial consequences for his involvement in the scandal. 

It’s just one among innumerable examples of the way America’s justice system treats corporate malefactors with kid gloves while meting out cruel punishment on the poor for what are sometimes trivial crimes. For many CEOs at large firms, there is essentially no deterrent to unethical and fraudulent behavior beyond a handful of toothless fines or a few hours’ grilling in front of a Senate committee. While harsher penalties wouldn’t actually put a stop to many of the worst corporate crimes, executives and capital barons might hesitate before inflating share values, gouging consumers, or ripping off tenants if the personal cost amounted to more than an uncomfortable visit to Capitol Hill, the forfeiting of glorified pocket change, and a few weeks of bad headlines. 

“Lock up the bankers” was never just a catchy slogan born out of popular rage. More than anything else, it was a cry for the kind of basic justice that might cause the malefactors of wealth to think twice before committing arson again.