Thomas & Diamantis on Branding Corporate Criminals

W. Robert (Will) Thomas and Mihailis Diamantis (University of Michigan Ross School of Business and University of Iowa - College of Law) have posted Branding Corporate Criminals on SSRN. Here is the abstract:

 

Corporate punishment has a branding problem. Criminal sanctions should call out wrongdoing and condemn wrongdoers. In a world where generic corporate misconduct is a daily affair, conviction singles out truly contemptible practices from merely sharp, unproductive, or undesirable ones. In this way, criminal law gives victims the recognition they deserve, deters future wrongdoers who want to preserve their good name, and publicly reinforces society’s most treasured values.

Unfortunately, corporate punishment falls far short of all these communicative ambitions. For punishment to convey its intended message, society must be able to hear it. When courts convict individuals, everyone understands that the conviction places a mark of enduring stigma: “felon,” “thief,” “murderer,” and “fraudster.” The state reinforces this impression by reserving its harshest and most degrading treatment for individual criminals, caging them and possibly killing them. Corporate punishment, by contrast, is a fleeting affair diluted by civil and administrative alternatives, PR spin, and a frenetic media environment. In today’s criminal justice system, it can be hard even to identify after the fact who the corporate criminals are. Unsurprisingly, corporations view criminal charges as inconvenient economic uncertainties and criminal fines as mere costs of doing business. Public perceptions have largely followed suit.

Corporate criminal law could disrupt this perverse dynamic by adopting a new sanction that would “brand” corporate criminals. While the brand sanction could take many forms—different visual marks of varying size—this Article calls for, at a minimum, appending a criminal designation, ⓕ, to corporate felons’ legal name and mandating its appearance on products and communications. This “corporate criminal brand” would stand as a 21st century corporate reimagining of its medieval corporal punishment namesake. Lawmakers rightly rejected physical brands on individual criminals long ago. The criminal justice landscape is different for corporations, who feel no pain and have no dignity. Unlike monetary fines, corporate criminal branding would unambiguously signal a corporation’s criminal status to outside observers. By forcibly integrating corporations’ criminal identity into their public image, criminal law might finally have a way to recognize victims and to strike at what corporations value most.