Criminal corporations: Prof argues 'corporate criminal liability is a question of corporate power'

The US Supreme Court's Citizens United ruling, famously echoed by GOP presidential candidate Mitt Romney, held that corporations are people (and thus possess free speech rights). But that hasn't stopped some in academic and corporate circles from maintaining that corporations should be exempt from criminal law. This author, for example, in 2009 compared criminal punishment of corporations to punishing animals or inanimate objects (likening it to a biblical practice archaically referred to as "deodand"). Others argue criminal law should focus on the individuals engaged in misconduct instead of punishing a "legal fiction." But the Corporate Crime Reporter alerts us to a rebuttal to such views in a story which opens:

The question of corporate criminal liability is a question of corporate power.

That’s according to Charles R.P. Pouncy, a professor of law at Florida International School of Law in Miami. Pouncy is author of, most recently, Reevaluating Corporate Criminal Responsibility: It’s All About Corporate Power (Stetson Law Review, 2012).

Pouncy tackles head on the increasingly popular idea that we should eliminate corporate criminal liability.

“The notion that corporations, and derivatively, capital, should be exempt from punishment under the criminal law — which expresses societal standards and expectations — is inconsistent with the expectations of most members of the communities that corporations inhabit,” he writes.

“This challenge against using the criminal law to control corporate behavior is a component of a larger struggle . . .to determine which forces will control the shape of future society,” he writes. “It is a struggle about which institutions will structure the nature of the world we live in.”

“Will human societies be controlled by the institutions that have structured their existence for the last few thousand years —  kinship, community, religion/philosophy, and social provisioning?” Pouncy asks. “Or will economic institutions, specifically the institutions of the corporation and capital, dominate society and subordinate its human members to the interests of its artificial citizens and their advocates?”

“The question of the corporation’s and capital’s accountability to the criminal law is one of the frontlines in determining whether the . . . principles organizing human societies are designed to serve the interest of corporations or of people. Therefore, this question is central to whether human power will be supplanted by the power of artificial entities.”

I recall a humorous sign from one of the Occupy Wall Street rallies that declared, "I'll believe corporations are people when Texas executes one."

In truth, though corporations theoretically may be held criminally liable, in practice that itself a legal fiction. When companies are caught engaging in bribery or money laundering, for example, they're inevitably allowed to squeeze out from under criminal charges via civil penalties and financial settlements under "deferred plea agreements." Rarely if ever are the companies themselves or corporate officials who made such decisions held criminally responsible for such behavior. If corporations are people, though, why shouldn't they be subject to criminal sanctions?

Prof. Pouncy contends that, "money alone does not satisfy society’s need to condemn the behaviors it finds damaging to its interests," arguing that "the prospect of having to endure moral condemnation" under criminal law supplies greater deterrent. For my part, I think a) that the idea that corporations are people is BS and b) symbolic condemnation matters much less to corporations than financial liability. I'd rather see individual corporate decision makers held criminally responsible, with corporations punished through regulatory sanctions and civil liability. But in the wake of Citizens United, the personhood of corporations, however absurd, now has been enshrined as the law of the land. And if corporations are people, it follows they can be criminals.