Hester Prynne Sanction


The persistent issue of corporate punishment has been the proverbial
thorn in the side of many people throughout history. Corporations have caused
many people huge amounts of both physical and emotional pain due to instances of
improper mechanical maintenance, ignorance towards the environment, and the
manufacture of life threatening products. The main problem that lies as an
obstacle in front of prosecutors of these corporations is, who do they punish?
The Lord Chancellor of England questioned, “Did you ever expect a corporation to
have a conscience, when it has no soul to be damned, and no body to be kicked?”
Countless victims throughout history have been perplexed to come up with a
solution to answer the Chancellor's question. How can people throw a corporation
in jail, or have them compensate for their immeasurable losses? In his work The
Hester Prynne Sanction, Peter French analyses ways in which the courts can
change how they punish corporations more effectively. This essay will take a
critical look at French's solution, examining if it is an effective and morally
justified fashion of punishing corporations.
In our society, retributive ideals have been implanted in us, as the
famous biblical “eye for an eye” concept seems to be society's manner with which
we punish criminals. This is an interesting case though, because corporations
don't simply have one individual they can place the blame upon. Rather, they are
comprised of hundreds or even thousands of people, and therefore there is no
extensive punishment prosecutors can place upon everybody who is employed by a
corporation. In a famous case in Indiana involving Ford Pinto whose “cost
benefit analysis regarding the redesign of the gas tank on the Pinto” cost a
person his life. The firm ended up paying $200,000, but how can you place a
price on human life? And furthermore, who can you go after for retribution? The
engineer who drew up the plans? The CEO who approved the change? Or even the
Factory worker who placed the new tank in the car? None of them, according to
the current laws, writes French. “ The idea that a corporation can pay a court
fine or a set sum to the relatives of its' victim in a homicide case, and
therefore expiate its guilt is, however, regarded by many people as a shocking
affront to justice.” Very few of these cases can be directly linked to
individual negligence or intentional recklessness, and the fines can easily be
written off as business expenses. The corporations usually recover fines quickly
by means of higher prices. This poses a major problem for society, because the
fines imposed on corporations are not even regarded, “ in the corporate world as
punishment comparable to human incarceration.” Therefore people want to gain
control of the “most powerful institutions in our community” and more
importantly gain the justice that they rightly deserve. This justice comes in
the form of Peter French's Hester Prynne Sanction.
French's Hester Prynne Sanction is an “alternative type of punishment” ,
and is a well thought out and researched proposal. The solution takes a
psychological approach to the problem. French notes that our legal system is “
guilt based, and guilt is an economic notion” , and that guilt has been looked
at as a debt to a victim or to a society in general. The way to repay this debt
is by punishment, which consequently acts as a means to repay and restore
society's equilibrium. Therefore, if a corporation is guilty of pollution they
simply repay society by donating money to a group who will “clean up” the
astronomical mess they made, and in turn, the damage they caused will be repaid.
French believes we, as a society, should abandon this outlook and switch to a
shame based attitude when it comes to justice involved in the corporate law
system, because the feeling of shame makes one feel inadequate or inferior. With
this system, if a corporation was involved in a situation that was discordant
with the law and trust had been shattered, the courts could induce shame as a
means of punishment.. This shame would enlighten the media to the wrongdoing,
who would in turn enlighten both the corporation of their mistakes, as well as
the public of this “shameful behavior”. The advantage to this new system is that
shame cannot be eliminated by a payment. “Paying a fine cannot restore the
status quo disrupted by shameful actions. It cannot reestablish worth or trust.
Regaining worth, reclaiming identity is not a question of purchase.” This
forces the shameful party to act in a positive,