As noted by various reputable news sources, it appears that the United States Consumer Financial Protection Bureau may be seeking to fine Wells Fargo up to $1 billion dollars for its corporate misbehavior. In light of the massive scope and persistence of Wells Fargo’s criminality, in my opinion such a “punishment” would amount to a shockingly lenient outcome, a mere slap on the wrist and would breed cynicism, sending out the wrong message.
As an active lifelong member of the death penalty abolition movement, I never thought the time would come when I would see any benefit to be derived from an execution. Now that time has come. Wells Fargo turned the tide for me. The determination that Wells Fargo, in violation of its fiduciary responsibilities to its depositors, committed widespread fraud upon those depositors by creating dummy accounts in their names over several years, among other fraudulent actions, marks the company as one of the worst of the worst. Such racketeering enterprises should result in the complete forfeiture of Wells Fargo’s right and opportunity—and that of its corporeal accomplices—to ever have, use or hide behind any corporate veil again. Its total incapacitation ought to be brought about in the public interest.
In the case of Citizens United v. Federal Election Commission, the United States Supreme Court treated corporations—fictional economic structures created by the State—the same as it treats natural persons and held that such artificially created legal persons have First Amendment rights the same as ordinary people do. That decision occasioned former Secretary of Labor Robert Reich to remark that he’d “believe corporations are people when Texas executes one.”
Secretary Reich’s humorous challenge is not as far fetched as it may seem at first blush. It is established law that corporations can be convicted of criminal wrongdoing. To execute a corporation convicted of criminality, all that would be needed would be a court order, authorized by law, revoking its corporate charter forever and forbidding that corporation and its convicted human accomplices—culpable managers, officers, employees, agents and investors—from ever again doing business through the use of any corporate entities, names or aliases, directly or indirectly. The use of nominees would be strictly forbidden.
The opportunity to do business as a corporation is not an absolute right but a privilege conferred by the State. Inasmuch as corporations are entirely creatures of the State, what the State gives, the State can take away. A corporation, born when the State breathes life into it by receiving its Certificate of Incorporation and issuing to it a corporate charter, ceases to exist when that corporate charter is revoked. Like the execution of a human being, at that point the corporation ceases to exist. In effect, it has been executed.
The execution of a culpable corporation would be immaculate. There would be no need for gurneys, strap down teams, searches for usable veins or procuring drugs to bring about death. A convicted criminal corporation and its human accomplices would simply be barred from ever again creating or using corporate identities in conducting their future business activities. While they would retain their right to engage in business transactions, in doing so, they would be limited to the use of their own real names with absolutely no use of any corporate identities being permitted to them. No more legal fictions or masks would be allowed, promoting openness and transparency, allowing for easy public scrutiny of their future business operations and discouraging criminal recidivism.
Significantly, the elimination of the corporate veil would also end the existing limits upon financial liability for a convicted corporation and its human accomplices—the present system under which victims of criminal corporate rapacity, in satisfying damage awards obtained against their victimizers, are limited to corporate assets alone, with perpetrators’ personal wealth being off-limits, completely shielded and immune from seizure. In other words, there would be complete personal financial liability backed to the hilt by perpetrators’ own personal wealth, readily available to recompense their victims to the full extent of any harm that they inflict.
Beyond Wells Fargo, other corporate executions are also warranted and should follow that precedent, once established.
William M. Erlbaum is a retired justice of the New York State Supreme Court.