Incapacitating Criminal Corporations

Abstract

If there is any consensus in the fractious debates over corporate punishment, it is this: a corporation cannot be imprisoned, incarcerated, jailed, or otherwise locked up. Whatever fiction the criminal law entertains about corporate personhood, having a physical “body to kick”—and, by extension, a body to throw into prison—is not one of them. The ambition of this project is not to reject this obvious point but rather to challenge the less-obvious claim it has come to represent: incapacitation, despite long being a textbook justification for punishing individuals, does not bear on the criminal law of corporations.

This Article argues that incapacitation both can and should serve as a justification for punishing criminal corporations. Descriptively, it interrogates how rote appeals to the impossibility of corporate imprisonment obscure more pressing, challenging questions about whether and to what extent the criminal law can vindicate an account of incapacitation that extends to corporate persons. Excavating a richer conceptual framework for incapacitation from our practices of individual punishment demonstrates that sanctions already imposed in or just outside the criminal law can be better understood as efforts to incapacitate, rather than to deter or rehabilitate, a criminal corporation. Indeed, reevaluating the law’s understanding of penal incapacitation provides reason to think that there are similar and perhaps stronger reasons for incapacitating corporate persons than there are for individuals.

Prescriptively, the Article leverages this comparative framework to argue that incapacitation should be recognized as a core justification for corporate punishment. Although rehabilitation has gained traction in past decades as a basis for punishing corporations, incapacitation stands as a more realistic, more administrable alternative. This is because a principle of rehabilitation has led to a practice of imposing on corporations intricately designed but dubiously effective internal compliance and governance reforms. Incapacitation, by contrast, lends itself to clear, discrete prohibitions for which the criminal law is better situated to justify, impose, and monitor.