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March 24, 2023

"Branding Corporate Criminals"

The title of this post is the title of this new article authored by W. Robert (Will) Thomas and Mihailis Diamantis available via SSRN.  Here is its 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.

March 24, 2023 at 12:45 PM | Permalink


Ultimately, the question is what collateral consequence there should be for companies which have committed crimes. In certain types of industries, a conviction can cause problems with a corporation getting and keeping necessary licenses. But in other industries, there is minimal consequence beyond the initial fine for corporate wrongdoing.

As far as requiring "branding," I think there would be a serious First Amendment issue. Potentially, if the branding was for a condition of probation, it would be valid as a "choice" of the company to accept probation in lieu of an immediate penalty. But requiring someone to identify themselves as a convicted felon whenever they speak seems problematic. Recognizing that registries have been approved for certain types of offenders, this type of branding seems to go much further and comes closer to core First Amendment issues.

Posted by: tmm | Mar 24, 2023 4:01:55 PM

The concept of a 'public registry' is nothing more than 'more punishment'.

Registries are not a deterrence and anyone arguing it is should direct us all to some (any) empirical evidence or reliable scientific study to prove otherwise.

A public registry is nothing more than a "modern day scarlett letter", a concept conceived in the 1600's by the Puritans and then outlawed more than two hundred years later. Is this method really the best we can come up with?

To deter corporate operatives from contemplating or committing crimes, the criminal statutes must carry with them severe mandatory monetary penalties - the severity of which should mirror the severity of prison sentences imposed upon the average citizen, such as those who have viewed child abuse images on a computer screen (who then receive mandatory decades of incarceration, plus a severe fine). THIS is a deterrence. A public registry is not.

Posted by: SG | Mar 24, 2023 10:17:11 PM

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