(Corporate) Crime and Punishment

As you probably know from watching the Eliot Spitzer show, corporations can be convicted of crimes. Under traditional moral theories of individual desert, this concept is complete gobbledegook: corporations don't have minds, so they can hardly have the "guilty mind" required to justify criminal punishment. But once you have the "artificial person" fiction in regular use, pretending that the corporation has a mind too isn't too big a step (indeed, some articles on the theory of punishing companies have suggested that conviction turn on the nature of the corporate "ethos").

Now, most of the academic literature on punishing corporations takes, so far as I can tell, a fairly economic approach to the question. The issue is treated as one of deterrence of unwanted conduct; the risk of a criminal conviction becomes another factor the company's officers must weigh when deciding what its policies will be. While these articles make a fairly good-faith show of it -- they run through the incentives of shareholders, officers, and employees, and try to figure out how legal pressure actually filters into individual actions -- I keep getting the sense that their hearts aren't really in this whole corporate-criminality thing.

Why? Because you can't send a corporation to jail. The "artificial person" metaphor can only be stretched so far. If all you can do is fine a miscreant corporation, then why bother with criminal law at all? You could squeeze equally-large penalties out of either by letting aggrieved victims sue it in tort, or by having the government sue it (as in antitrust) or just slapping it with administrative fines (as in the do-not-call list). Either way is cheaper, easier, and surer, because you can avoid many of the defendant-protecting rules of criminal law and procedure. So why bother?

The usual answer -- and this is where you can really hear these authors saying "don't ask me; I just work here" -- is that criminal convictions carry some stigma with them. It's bad to be a criminal. People don't like criminals. Being convicted of a crime is shameful. This stigma is a "kicker," something over and above any actual sentence or penalty imposed. It's a scarlet letter, a black flag. Not only does your desire not to wear this badge of shame motivate you not to commit crimes; it serves as a signal to the rest of society that crimes and criminals are bad. The act of convicting criminals in this fashion serves as a kind of public recommitment to the dignity of victims, a social confirmation that crimes really are a deviation from the normal and proper order of things.

Now, here's the thing. It's really hard to fit this kind of theory into the practice of convicting corporations. There's simply no one to bear the stigma, goes the thinking. Once again, you can't stretch personhood too far. Perhaps stigma means stigmatizing the shareholders -- but in practice, that never happens. People who owned stock in Enron get our sympathy, not our condemnation. Or perhaps it means stigmatizing the officers and employees of the corporation -- but the vast, indeed, overwhelming majority of them will be utterly innocent of any wrongful intent, in any meaningful sense. Punishing many innocent people in order to reach a few guilty ones strains against our sense of justice. Hence the discomfort of many commentators; the typical approach seems to be to try and cram the stigma somehow into an instrumental theory of deterrence.

I think I have a better idea.

The fallacy above is in the assumption that corporations, being only juridical creations, don't have enough of the attributes of personhood in order to be stigmatized. A moment's reflection on the nature of modern marketing, though, shows why they do. We live in the age of branding, of corporate identity, of mascots, of cartoonish corporate spokesfigures. Most of the value in a corporation, we are told, inheres in its reputation, in the coherent and positive associations of its line of brands. Corporations take out ads and sponsor events and hold press conferences and do a zillion other things purely to build a sense of identity in the minds of the public.

Yes, corporations aren't internally people. But that's wholly beside the point when it comes to convicting them. The point of criminal stigma is in the external manifestations of identity. The point of convicting you criminally (other than being able to throw you in the slammer) is to give you negative associations in the eyes of others. And in that sense, it's perfectly sensible to stigmatize corproations. When I read that a brokerage house is being threatened with criminal prosecution for insider trading, I associate their happy logo and sober-voiced ad copy with all sorts of sleazy goings-on. Now, normally when people try to associate Smilin' Joe Fission with sleazy goings-on, that's trademark tarnishment, and the power plant can go to court to get an injunction against the association. Which is to say that we already have a judicially-cognizable concept that captures this sense of corporate reputation. If we can think about corporate identity positively -- in the context of trademark -- there's no conceptual barrier to our thinking about it negatively -- in the context of criminal conviction.

Which leads me to the following suggestion: why don't we add a trademark remedy to the list of possible sanctions for criminally-convicted corporations. In addition to fines, we could strip corporations of their trademarks. Or, if we were willing to be a bit more subtle, we could bar them from bringing tarnishment actions. (I'd personally add dilution actions, too, just because judges seem so willing to expand the scope of dilution. If we didn't throw it in, there's a danger that dilution would grow to take in what we now as tarnishment. Let's take away some of their domain-name causes of actions, too, while we're at it.) People who disliked the corporation could make fun of its identity and its brands and use them in variously foul, demeaning, and disrespectful ways. The overall effect would be that the corporate image would be tarred in people's minds; we'd look at it and think of it, quite literally, as a corporate criminal.

If you wanted to be even craftier, you could use this one as a remedy in cases where the wrongful conduct in some way connected to branding and corporate image. False advertising, trademark abuse, and misleading business practices come to mind. Thus, in a Nike v. Kasky situation (yes, yes, that was a civil case, I know), what better way to discipline a corporation for falsely burnishing its image than by opening it up to some tarnishment? There's a fit there between crime and punishment that's expressively right. Personally, I'd rather have the remedy available more broadly, nor do I (yet) think that it really cures the potential First Amendment problems lurking in some of these causes of action, but there is something appealing about saying that bad corporations are bad by taking away the very trademark rights they use to lie about their badness.