Skip to main content

Corporate Incapacitation: A Handmaid’s Tale?

Posted by on Tuesday, August 27, 2019 in En Banc, Responses.

Mihailis E. Diamantis | 72 Vand. L. Rev. En Banc 251 |

In Incapacitating Criminal Corporations, W. Robert Thomas argues that corporate criminal law should think more creatively about incapacitation. As a general rule, I could not agree more with his motivating sentiment: inflexible dominant paradigms have stifled thought about how to sanction corporations for long enough. Old problems arise and recur, unsolved because corporations are not just economic mechanisms and deterrence is not the only way to control them. It is not that deterrence is a square peg and all the criminal justice holes are round. But filtered among the square holes are circular, triangular, and star-shaped ones too. We need all the pegs we can find.

Thomas has found a peg that we have too long overlooked. “Incapacitation is not applicable in the corporate context” because corporations have no body to jail, the familiar refrain goes. But Thomas tantalizingly shows what incapacitation can (and does) offer as “a means of punishing criminal corporations.” After showing how the law can incapacitate corporations without physically restraining them, Thomas demonstrates some of the novel possibilities that corporate incapacitation raises.

He hopes to go further, arguing that incapacitation is not just a means but also should be (and currently is) what he variously calls a “justification,” “rationale,” “goal,” or “basis” for punishing corporations. Roughly speaking, Thomas hopes to earn for incapacitation a seat at the table of more familiar “freestanding” justifications for corporate punishment: deterrence, retribution, and rehabilitation. As I argue below, though, incapacitation should only have (and currently only has) a secondary role in service to the other justifications. Thomas stakes his case on divesting rehabilitation as a justification for corporate punishment and claiming the empty seat for incapacitation. In what follows, I query whether Thomas accounts for the gap between the socially destructive enterprise that incapacitation necessarily is and the socially constructive enterprise that rehabilitation aims to be.

Download Link: Corporate Incapacitation

Link to W. Robert Thomas’ Vanderbilt Law Review article

Mihailis E. Diamantis