How to make the financial behemoths behave

I know a rich guy who parks wherever he wants - bus stops, hydrants, no-parking zones of all kinds. He gets ticketed of course and by the end of the year must pay several thousands of dollars in fines. I could tell you his name but I'd rather tell you what I prefer to call him: J.P. Morgan. They both operate the same way.

The financial giant JPMorgan Chase has paid out an estimated $70 billion in penalties since 2008. And while the amount is not inconsiderable, nobody has gone to jail and the firm continues to thrive. In fact, its CEO, Jamie Dimon, is one of the most respected names on Wall Street. He also makes a nice buck.

I choose JPMorgan Chase even though it is my bank and is paying something like .05 percent interest. (See, I can't be bought.) I might have just as easily chosen any other big bank. Citigroup, for instance, joined JPMorgan Chase (and some foreign banks) in paying $4.25 billion in fines for conspiring to manipulate currency markets. The banks then went on their merry ways, their stocks doing just fine, thank you.

JPMorgan Chase also had a cozy relationship with Bernard Madoff, who ran a titanic Ponzi scheme until his arrest in 2008. Under an agreement with the U.S. attorney in New York, the bank admitted that its London office was on to Madoff at least one year before he was arrested. It found his stated returns frankly unbelievable. The New York office, though, stuck with its man. In the end, Madoff cost JPMorgan Chase a $1.7 billion penalty - a relative pittance compared to what he cost others, including charities. The bank vowed never to do anything like that again. Case closed.

Not exactly. These are called "deferred prosecution" agreements, meaning that if the banks don't behave, the government can come back at them. These agreements are standard, and if you consult the data compiled by the University of Virginia's Brandon Garrett (author of the well-reviewed "Too Big to Jail"), you will notice the initials DP next to many cases involving errant financial firms. In other words, nobody was convicted of a crime.

Garrett's title encapsulates the conundrum. Everyone remembers Arthur Andersen, the accounting firm that could not account for how it did not notice that one of its clients, Enron, was a fraud. Andersen, in fact, was convicted of obstruction of justice - later reversed - and the firm collapsed. The big guys were punished, but the firm had 30,000 employees and most of them had nothing to do with Enron. No matter. They were out on the street.

So criminal prosecutions, while immensely satisfying, have their downside. But penalties alone don't seem to work. In the first place, they are paid not by the miscreants but by the stockholders, many of whom were probably not shareholders when the vile deed was done. In the old days, when most financial firms were partnerships, a penalty could really hurt. But those days are gone. The firms are publicly traded behemoths, both too big to fail and too big to jail. So, what to do?

To answer that question I refer you to Joseph S. Fichera, the chief executive of the financial firm Saber Partners. In a stunning application of common sense, Fichera suggested in a New York Times essay that the Securities and Exchange Commission operate like any state's motor vehicle department - fines, plus points. This would mean that an infraction would cost the financial firm not only some money but some points as well. At first, the firm would not sweat it. But as the points accumulated and its trading license (like your driver's license) was on the line, it would start to slow down, obey all regulations and oversee the corner-cutters because so much was at stake. The board of directors might even take an interest in how the firm is managed and not just the bottom line.

Like anyone else, I would like to see the occasional Wall Street hanging. But more important, the application - or prospect - of severe penalties via a point system would surely deter unethical behavior. Once those points started to add up, everyone in the firm would be on alert. As it is now, though, the penalties are announced on what seems like a monthly schedule and the American people are entitled to think the adage is wrong: Crime does pay. At these interest rates, saving doesn't.

Richard Cohen's email address is cohenr@washpost.com.

© 2014, Washington Post Writers Group