One of the more puzzling aspects of the financial meltdown is the complete lack of prosecutions of high level bankers, and Bill Black of New Deal 2.0 explains why:

What has gone so catastrophically wrong with DOJ, and why has it continued so long? The fundamental flaw is that DOJ’s senior leadership cannot conceive of elite bankers as criminals. On Huffington Post, David Heath writes:

Benjamin Wagner, a U.S. Attorney who is actively prosecuting mortgage fraud cases in Sacramento, Calif., points out that banks lose money when a loan turns out to be fraudulent. An investor in loans who documents fraud can force a bank to buy the loan back. But convincing a jury that executives intended to make fraudulent loans, and thus should be held criminally responsible, may be too difficult of a hurdle for prosecutors. ‘It doesn’t make any sense to me that they would be deliberately defrauding themselves,’ Wagner said.”

(emphasis original)

What is going on here is that the prosecutors are assuming that the agents of the financial institutions are perfect agents of those institutions, and that they would never act in their own personal benefit if it were detrimental to their employer in the long term.

This has a number of names, most commonly, it is called the principal agent problem, and the (now unconstitutional) theory of the theft of honest services prosecutions was based on this.

The facts here, though not necessarily the law, are clear:  Various high level agents at financial institutions engaged in activities that were likely to blow up in the long term, but were unlikely to do so before these agents profited from them.

The only question is whether this behavior was merely stupid or negligent, in which case, a life-time ban from the financial industry is warranted, or fraudulent, in which case, incarceration is warranted.

The calculus here is not rocket science, and the fact that prosecutors are sticking to such a transparently false theory is to my mind more of an indication of corruption than it is of stupidity or wrong headedness.

Without jail time, we will see the behavior repeated.

Hell, we are seeing it repeated right now, that’s why the bonuses are so big this year.