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Restorative Justice for Banks Through Negative Licensing

NCJ Number
British Journal of Criminology Volume: 49 Issue: 4 Dated: July 2009 Pages: 439-450
John Braithwaite
Date Published
July 2009
12 pages
This article proposes the application of the principles of restorative justice to banks through "negative licensing" and restorative justice conferences as means of making bank loan managers manage risk (reduce the risk of making bad loans) rather than shift risk (pass the risk of bad loans on to another institution to make a quick profit).
The most important element of a new regulatory structure to prevent the current financial crisis from recurring is to remove irresponsible risk shifters as soon as "hot spots" of failure to manage risk appear. This means that government regulators, much like local police, must engage in crime analysis to determine where criminal behaviors are likely to occur based on past behaviors of financial institutions that have engaged in quick profit-making by shifting rather than managing risk. Once the risk-shifters have been identified, "negative licensing" should be employed. Whereas "positive licensing" is required in admitting qualified individuals into professions that have important responsibilities that impact people's lives, "negative licensing" means the regulator can issue an order that the individual banker be banned from working in the finance industry. Under the principles of restorative justice, this holds the banker accountable for the harms he/she has caused. A second principle of restorative justice is preventive rehabilitation that attempts to manage the behaviors of those at risk for crime. This article argues for restorative justice conferences in financial institutions where failures to manage risk have been detected. Restorative justice conferences might not lead to the negative licensing of personnel out of the financial sector, but it might serve as a warning shot that will prevent the deviant behavior from deepening at that bank. The biggest impact on crime comes from proactive crime prevention at "hot spots." 29 references