Criminal law aims to hold wrongdoers accountable for the harm they cause. As Deputy Attorney General Lisa Monaco put it when delivering her 2024 White Collar Crime National Institute Address: “[a]ccountability promotes fairness, drives deterrence, and fosters respect for the rule of law.” Are prosecutors successfully holding corporate wrongdoers accountable for the crimes they commit? Most commentators answer this question in the negative. In their recent paper, Thomas and Diamantis maintain that corporate criminal law is in crisis because the sanctions currently available to prosecutors neither deter misconduct nor express the moral condemnation usually attached to criminal sanctions. The authors make a bold proposal for reform: corporate branding. Their argument for reputational sanctions that shame corporate criminals is both original and persuasive.
Thomas and Diamantis begin by establishing that corporate punishments currently in use fail to serve the goals of criminal law. Criminal fines have limited effectiveness and run the risk of becoming merely “the cost of doing business” for companies that engage in profitable misconduct. As the authors point out, there is nothing that sets these sanctions apart as especially punitive in contrast to civil fines. In fact, criminal fines are often lower than civil penalties a company might face. In addition, prosecutors have no recourse when corporate criminals cannot afford to pay those fines. Individuals can be imprisoned for failure to pay, which imposes appropriate consequences and creates deterrence. Companies, by contrast, might have their fines lowered or get the benefit of pretrial diversion agreements that require a mere promise not to engage in criminal activity again—a promise that companies often break with impunity. Similarly, probationary supervision and mandatory compliance programs are insufficiently punitive and do not adequately punish and deter corporate crime.
The authors do not shy away from the dark legacy of corporal branding, which they aim to translate into the corporate context. They provide a fascinating history of shaming and branding sanctions, from ancient Greek brand tattoos to the “scarlet letter” A used to brand women who committed adultery in colonial times, complete with illustrations of these practices. The critical distinction underlying their argument is that the corporate person is lacking a physical body and is therefore radically different from an embodied individual with respect to criminal branding practices. Thus, Thomas and Diamantis unequivocally condemn the ancient practice of branding individuals, but they draw on its purposes in creative ways to advocate for a revival of branding for corporate crime.
To be sure, shaming sanctions for individuals are dangerous and morally repugnant, but corporate persons can be a proper object of branding designed to shame and marginalize. For example, branding individual criminals—even metaphorically by attaching shaming labels to them in the form of a criminal history that prevents reintegration into society—transforms criminal conviction into a status that defines a human being. However, as Thomas and Diamantis contend, “corporations are constitutively better fit for status or propensity designations.” Another reason to view corporate branding permissible is that it need not be permanent: if a corporation has truly rehabilitated itself after conviction, the brand which affixes criminal status can be removed. In this way, it resembles something like a registration requirement for sex offenders, rather than a corporal brand, because it can be lifted once the person has been rehabilitated in the eyes of the law.
The authors then provide a thorough analysis of factors to consider when designing a criminal brand, including visibility, education, evocation, and duration. Judges and prosecutors should develop specific marks depending on the circumstances of the crime, the industry of the corporate offender, and other case-specific factors. In doing this work, justice system professionals should collaborate with communications experts who specialize in marketing and public relations campaigns. Given the case-specific nature of criminal branding sanctions, the images of marks that the authors include as illustrations are merely suggestions, but they are helpful for making their provocative argument more vivid for the reader.
One of the main reasons that criminal branding can be effective in punishing corporations is that a company’s brand or reputation is often one of its most important assets. Thomas and Diamantis estimate that “brand equity” constitutes “upward of 30 percent of public companies’ market value.” Moreover, studies show that members of Generation Z (the oldest of whom are just turning 25) are particularly attuned to the moral standing of corporations, both as consumers and as employees. As a result, shaming sanctions in the form of corporate branding may have an especially significant impact on a company’s bottom line in the coming years. If information about corporate criminal activity becomes more publicly available through branding, Gen Z will hold the criminal companies accountable by marginalizing them from the marketplace.
Marketing professionals can assist prosecutors and judges in implementing reputational sanctions such as branding. But what purpose would a criminal justice marketing campaign serve? Raising public awareness of a company’s conviction would allow consumers and employees to “boycott” corporate criminals based on the moral outrage their convictions evoke. In other words, while reformers often urge against overly retributive and emotional responses to “street” crimes, this article seeks to reactivate the public’s retributive instincts against corporate criminals. Still, they urge caution, arguing that corporate branding should serve a “legitimate criminological purpose” and should “be implemented in a way that does not cause pain or social debasement.” Attaching a criminal brand to a corporations can communicate the dangers posed by criminal actors and express condemnation of the offense while supporting victims. In the authors’ words, corporate branding can “capture the good without the bad.”
Thomas and Diamantis want to reverse the emphasis on “rehabilitation, governance, and compliance” in corporate criminal law, returning us to the adverse reputational sanctions that failed to gain traction when the U.S. Sentencing Commission introduced them in its 1992 guidelines. Whether or not readers are ready to embrace the branding proposal in all its details, this article offers an innovative solution to the corporate criminal law crisis. We might wonder whether corporate criminal branding is not simply a financial penalty by another name. As consumers and employees turn away from corporate criminals, those companies will suffer in the market. Prosecutors and judges may be reluctant to use branding for the same reason they worry about imposing crippling fines on corporations; namely, that it will impact innocent parties like employees and shareholders. Another question that the corporate branding theory invites is whether the public would in fact experience retributive emotions or embrace shaming sanctions directed at corporations. As some commentators have argued, retributive sanctions grounded in blame may be improper for non-human criminal acts. In sum, Branding Corporate Criminals offers a blueprint for a workable policy solution, while raising profound questions about the nature of corporate punishment. Anyone interested in corporate criminal law will benefit from reading this well-researched and engaging piece.
