2018] CLOCKWORK CORPORATIONS 509
“[H]ow about this new thing they’re talking about? How about this new like
treatment that gets you out of prison in no time at all and makes sure that
you never get back in again?”1
It is actually not so new. Though unpopular for the last few decades,
punishing criminals by reforming them was once the predominant approach.2
Anthony Burgess poignantly described one prominent concern that led to its
demise: Coerced reform risks turning people into “clockwork toy[s] to be
wound up by . . . the Almighty State.”3 Forcefully changing character and
personality is an affront to the self-defining freedom that is the root of human
While generally marginalized today, punitive reform is undergoing a
resurgence for a different kind of “person”—the large, publicly traded
corporate criminal. Prosecutors are at the forefront of the movement. In the
deals they cut with corporate suspects, prosecutors often require programs of
reform.4 Implicit in how prosecutors now treat corporate defendants is the
recognition that their fundamentally different nature allows for a different
approach to punishment. Burgess’s complaint loses all its force in the
corporate context. Corporations are not, and cannot be, free, self-defining
loci of dignity.
Scholars and lawmakers are still behind the curve. While prosecutors
have been experimenting with reform-as-punishment, the dominant
academic and political discourses on corporate crime still focus on deterrence
and retribution.5 There is the seed of a third path in what prosecutors are
doing. This Article seeks to uncover the implicit logic behind corporate
prosecutors’ decisions. In its present form, prosecutorial practice is focused
on reform and rehabilitation. Were the logic of the practice pushed and
perfected as an approach the entire criminal justice system could take toward
corporate punishment, an organizing theory that is different from deterrence
and retribution emerges—character theory. As argued below, character
theory opens new conceptual space for solving some of the most persistent
problems in corporate criminal law.
1. ANTHONY BURGESS, A CLOCKWORK ORANGE 69 (2012).
2. See infra Part V.B.
3. BURGESS, supra note 1, at 2.
4. See Anthony S. Barkow & Rachel E. Barkow, Introduction to PROSECUTORS IN THE
BOARDROOM: USING CRIMINAL LAW TO REGULATE CORPORATE CONDUCT 1, 3 (Anthony S. Barkow
& Rachel E. Barkow eds., 2011) (Using deferred prosecution agreements, “prosecutors impose
affirmative obligations on companies to change personnel, revamp their business practices, and
adopt new models of corporate governance.”). Some scholars, though, question whether
prosecutors really care about reform. BRANDON L. GARRETT, TOO BIG TO JAIL: HOW PROSECUTORS
COMPROMISE WITH CORPORATIONS 75 (2014) (“These data suggest that prosecutors are not tak ing
structural reform seriously.”).
5. See infra Parts II–III.