Editor's Note: Jim Cramer's column runs exclusively on RealMoney.com; this is a special free look at his column. For a free trial subscription to RealMoney.com, click here. This article was published Dec. 27 on RealMoney.

We need strong independent boards that don't rubber-stamp management.

That I even have to write that is a shame. But after reading Jim Seymour's

excellent piece about the board of



, I am reminded that we all take it for granted that boards will do their jobs. We know that's simply not the case.

For me, the cardinal case for this lack of due diligence is the board of



. Here's a case where there are only two possibilities: The board was either asleep at the wheel, which is a disgrace, or it was complicit, which would be criminal.

Enron will determine the future of what the role of board members will be. That's because the Justice Department might be able to change corporate behavior once and for all if it chooses to go after everybody who didn't do their jobs with Enron.

Here's why. There won't be any money left to give anybody with Enron. That stock you see is worthless.

It shouldn't even be trading. So the prosecution will be solely about revenge and the need to make future boards more responsible for the actions of companies. We need prosecutors to create the serious risk of going to prison if you turn a blind eye to wrongdoing. We need them to make it clear that if you participate directly in schemes to defraud the market, you will go to prison.

Prison, unlike fines or industry barring, is something that is universally feared among the white-collar set. Right now, the possibility of going to prison is extremely remote if you do something wrong at a major corporation. Think about it: The



scandal, one of the worst I have ever seen, still has not led to prosecution of the top dogs behind the fraud. That's incredible. There is simply no fear out there.

We have to create that fear. The Justice Department can create that fear. Only then will these board members take their jobs seriously, or resign and let others who are willing to approach the job with true diligence take over.

Right now we have the worst of all possible worlds: Fraud gets committed and nobody pays, except for a couple of insurance companies.

James J. Cramer is a director and co-founder of TheStreet.com. He contributes daily market commentary for TheStreet.com's sites and serves as an adviser to the company's CEO. Outside contributing columnists for TheStreet.com and RealMoney.com, including Cramer, may, from time to time, write about stocks in which they have a position. In such cases, appropriate disclosure is made.

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