But We Haven't Got Corporate Criminal Law!(Special Issue on Corporate Criminal Liability Law)

• Author: Diamantis, Mihailis E.

1. IMAGINING A WORLD WITH CORPORATE CRIMINAL LAW 992 II. THE STAKES 993 III. "THEY COULD SEE NOTHING, FOR THERE WAS NOTHING TO SEE" 995 A. Utilizing Criminal Procedure 997 B. Punishing the Worst Corporate Conduct 1000 C. Imposing the Harshest Penalties 1002 D. Expressing Moral Condemnation 1003 IV. STARTING A REAL DISCUSSION ABOUT CORPORATE CRIMINAL JUSTICE 1005 A. Better Procedures, Actually Applied 1005 B. The Worst Offenders, Not Just the Smallest Ones 1006 C. Better Sanctions, Not (Just) Harsher Sanctions 1007 "They set up two looms and pretended to weave, though there was nothing on the looms." (1) I. IMAGINING A WORLD WITH CORPORATE CRIMINAL LAW

   This symposium instructs us to "imagine a world without corporate criminal law." While grateful for the invitation, we cry foul. It might as well ask us whether the Beatles' twenty-second studio album was any good, how long World War III lasted, or if the Emperor's new robe fits him well. Famous philosophers from Bertrand Russel to Gottlob Frege have tried to explain how to understand statements about things that do not exist--so-called "improper definite descriptions." We are not up to that theoretical task. Rather we write with child-like naivete simply to observe, "But he hasn't got anything on!" Corporate criminal law does not exist, and it never has.

   Just as we can only understand Hans Christian Anderson's classic story once we know what "robes" are supposed to look like, our fanciful symposium assignment presumes we know what corporate criminal law is. We have an idea of what the prompt means to invoke. There is a cast of governmental and corporate characters who enact a familiar morality play. Each performance begins with an invocation from Title 18, chapter and verse. The plot is always the same: corporate villains receive their just deserts for breaching fundamental tenets of our shared social order. When the curtain closes, we are all expected to sleep soundly, freshly vindicated and assured of our safety.

   But simply calling this performance "Corporate Criminal Law" will not make it so. There are other modes of legal accountability, like tort and civil regulation, and no one seriously proposes releasing corporations from their disciplinary influence. To focus on this symposium's intended topic, we need to know what criminal law's distinctive marks are. Rather than enter the tangles of that legal theory thicket, we proceed in an ecumenical spirit. We assume that any major philosophical view about criminal law could be right. Criminal law might be distinctive because it:

   * Uses uniquely demanding procedure, or

   * Punishes the worst conduct, or

   * Imposes the harshest penalties, or

   * Expresses distinctive moral condemnation.

   The general part of criminal law, which applies to individuals, exhibits all four of these features. It rebukes and jails murderers and rapists who are found guilty beyond a reasonable doubt. (2) If any existing legal practice directed at corporations has just one of these four features, we would be prepared to identify it as corporate criminal law and proceed with the symposium's exercise.

   The trouble is, we cannot find anything of the sort. We see instead a pantomime in which criminal justice functionaries and corporate interests stoop and ceremoniously carry a mantle of airy justice. (3) None of the participants are willing to confess that they hold nothing, for that would prove them unfit for their positions. We, by contrast, find it very easy to imagine a world without criminal law. We need only open our eyes rather than close them.

   Some other scholars have also confessed to trouble recognizing corporate criminal law. Miriam Baer, for example, recently argued that corporate criminal law "diverges from traditional understandings of what criminal law is." (4) In a related vein, John Coffee argued thirty years ago that the line between criminal and tort enforcement against corporations had all but disappeared. (5) But while the likes of Baer and Coffee are our fellow travelers, they have been traveling in the opposite direction. Where we see only a criminal law that refuses to cover corporations, they see a billowing over-abundance of it. Baer believes corporate criminal law has become "unbound" from traditional limits because prosecutors seeking to "do more" possess an unchecked authority to do too much, ignoring familiar principles of legality and culpability. (6) Coffee similarly believes corporate criminal law has burst its seams and cannibalized large parts of tort law. He would impose firmer "boundaries" on corporate criminal law's operation, excluding, for example, criminal enforcement of merely negligent violations. (7) Baer and Coffee both see a system of corporate criminal law, but one that is tumoral and unjust. Our thesis is different. We cannot see a system of corporate criminal law at all, whether to extol or to criticize.

   This Article offers a starting framework for having a meaningful discussion about the true question behind the symposium topic: Could corporate criminal law be a good idea, or is it hopelessly incoherent/unjust/counter-productive? Far more is at stake than the semantics of "criminal law" (Part II). The economic and moral harms of corporate misconduct are massive. Criminal law could step in where civil and administrative enforcement fall short, but only if we know what criminal law is (Part III). We consider all four of the above-listed distinguishing features of criminal law and conclude that no existing system of corporate adjudication has a single one of them. So, we find ourselves forced to flaunt symposium etiquette. We instead try to imagine a world with corporate criminal law (Part IV). Once we know what corporate criminal justice requires, we can start a genuine conversation about whether the United States should try it on.

2. THE STAKES

   Even if corporate criminal law does not exist, corporate crime certainly does. By any measure, the economic impact of corporate crime is at least an order of magnitude greater than all other criminal offenses combined. (8) Recent statistics from the FBI conservatively put the multiplier at around 20x. (9) It is little wonder. Corporations can lie, cheat, and steal, just like the human beings that compose them. Unlike their individual employees, corporations can act on a massive scale; indeed, some crimes become worth doing (in a narrow, profit-oriented sense) only when perpetrated at scale. As the dominant force in our social and economic lives, corporations have more resources to throw toward potentially harmful ends and more points of contact with potential victims.

   The costs of corporate crime are not just economic. Since corporations are profit-oriented structures, most commentators associate them primarily with economic violations like wire fraud, insider trading, anti-competitive practices, and money laundering. We now know better. Scholars, prosecutors, and courts increasingly recognize that brand-name corporations also commit a broad range of "street crimes": homicide, (10) arson, (11) drug trafficking, (12) dumping, (13) and sex offenses. (14) The moral and dignitary harms that victims suffer are not quantifiable in economic terms, but they are no less consequential for having been inflicted by a corporate actor. Indeed, the moral breach is likely more significant in the corporate case since all corporate misconduct is filtered through a background profit motive--whether the crime directly boosts revenue or results from cutting corners on adequate compliance. Every jurisdiction recognizes the difference between an assassination for hire and a crime of passion. Surprisingly, we still lack an adequate victimology to even speak meaningfully about the experiences of people whom corporate crime affects. (15) However, for the reasons discussed in the previous paragraph, the sure bet is that the victimology, when it comes, will reveal a pressing need for action. (16)

   To get a sense of what our options are for responding to that need, we should figure out what corporate criminal law is and whether the United States already has it. No one thinks the United States has a handle on corporate malfeasance. The best estimates of the dark figure of corporate crime suggest that only five percent of corporate crime ever comes to light. (17) Criminal law can step in where current law proves inadequate only if "current law" does not already include it.

   The stakes for understanding what corporate criminal law is and whether we have it extend far beyond U.S. borders. Many foreign jurisdictions across Europe, Latin America, and Asia are looking to the United States as a model for implementing their own corporate criminal law. (18) Several U.S. scholars are already at pains to discourage countries from mimicking the federal government's approach, either because they think our system of corporate criminal law fails to achieve its purposes (19) or because the particularities of the U.S. approach depend on idiosyncratic background legal conditions that are not present elsewhere. (20) We offer a more fundamental reason for foreign jurisdictions to look for another template: truth in advertising. The United States does not have a good or a bad system of corporate criminal law, a portable or contextually bound one. It simply does not have one at all.

3. "THEY COULD SEE NOTHING, FOR THERE WAS NOTHING TO SEE"

   Before we can ask whether U.S. corporate criminal law is coherent, (21) or what purpose it serves, (22) or imagine a world without it, we need some idea of what body of law we are talking about. If it exists, there must be some feature that distinguishes corporate criminal law from other modes of enforcement against corporations. Just as we know ducks by their characteristic waddle and quack, this Part asks how a system of corporate criminal law, if it were to exist, would have to walk and talk. Along the way, we observe that nothing in U.S. law seems to fit the...