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 about 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 communiqué 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 off-ramps, public relations spin, and a frenetic media environment. In today’s criminal justice system, it can be hard to identify who the corporate criminals even 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. Although branding sanctions 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 names and mandating its appearance on products and communications. This “corporate criminal brand” would stand as a twenty-first century corporate reimagining of its medieval corporal namesake. Lawmakers rightly rejected physical brands on individual criminals long ago. The criminal justice landscape is different for corporations, which feel no pain and have no dignity interests. 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 strike at what corporations value most.
