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Critics of former President Donald Trump likely cheered the recent conviction of the Trump Organization on charges of tax fraud and other crimes. At the same time, they may have been disappointed that the maximum penalty the company might pay for its misdeeds is $1.62 million—as The New York Times reported, "a drop in the bucket" for the organization, which has in past years generated millions of dollars in revenue.
Such disappointment is understandable. It raises a question about the point of bringing criminal charges against a corporation, given that a corporate defendant does not face the possibility of imprisonment for the crimes it committed.
It is important to remember that criminal liability and punishment may serve multiple purposes. These include deterrence, rehabilitation, and incapacitation. The potential for imprisonment serves each of these aims. The deprivation of liberty that accompanies incarceration creates incentives for responsible conduct. When individuals are convicted of engaging in illegal conduct, moreover, they are sentenced to a place where rehabilitation may be possible and incapacitation—removal from society—is relatively certain.
Whether the criminal law effectively achieves these aims where individuals are concerned may be debatable, and it is less clear that any of these ends is possible when the defendant cannot be imprisoned. But there is another goal of the criminal law that continues to justify its application to corporations: retribution.
Retributive justice has long been understood as an aim of the criminal law. This is because of the expressive nature of criminal liability and punishment. All our laws, and especially criminal laws, express how particular societal and personal goods should be valued—goods like bodily integrity, or the worth of our possessions. Criminal laws in this way reflect the moral judgments of the community that enacts them.
It follows that the commission of an act that the community, through its laws, has deemed to be wrong should be met with a response that properly expresses the value that actions of the defendant undermined. This expression of correct valuation is important to both the victims of a crime and the community as a whole—it is a corrective.
In the criminal context, the correct valuation of a good is expressed through a jury's verdict of guilty. Corporations are not immune from this kind of justice. American law recognizes corporations as entities separate from their owners, managers, and employees. Corporations possess their own identities—their own personas—and they regularly participate in society in a variety of ways. We need look no further for proof of this than the current obsession among some Republicans with challenging those corporations whose personas they deem too "woke."
When it comes to furthering the criminal law's aim to express the correct valuation of goods, corporations are not distinguishable from individuals. The value that a community through its laws assigns to a particular good should be the same no matter the status of the wrongdoer who contravenes that value. To the extent corporations can, just as easily as individuals, incorrectly value a particular good, they should be subject to moral condemnation through the criminal law. By holding corporations accountable for their actions in this way, the meaning of a community's values can be consistently enforced.
Consider the charges brought against the Trump Organization. Prosecutors proved to the jury beyond a reasonable doubt that the corporation engaged in tax fraud, scheming to defraud, conspiracy and falsifying business records. The prosecutors proved, in other words, that the Trump Organization improperly valued the societal importance of playing by the rules. Such misconduct is worthy of the same moral disapproval as if it had been committed by individuals.
While the maximum penalty the Trump Organization may face may seem relatively small, the precise number does not undermine the expressive message of the jury's verdict: cheating is wrong and should be publicly condemned. Our society envisions no harsher condemnation than a finding of guilt, a judgment that the Trump Organization should not escape.
Lawrence Friedman teaches courses in constitutional law and privacy and law enforcement at New England Law | Boston.
The views expressed in this article are the writer's own.
