Incomplete Sentences: Hobby Lobby’s Corporate
Religious Rights, the Criminally Culpable Corporate
Soul, and the Case for Greater Alignment of
Organizational and Individual Sentencing
Kenya J.H. Smith
“Corporations are people, my friend.”1 This now-famous statement by
presidential candidate Mitt Romney has come to symbolize the
predominant American perspective on the personhood of juridical entities
and the similarities between their recognized personhood and that of
natural persons under the law. Many American companies enjoy names
and brands as famous as any American citizen. McDonald’s and Coca-
Cola are as well-known as LeBron James and Taylor Swift.2 Individuals
Copyright 2016, by KENYA J.H. SM ITH.
Kenya J.H. Smith is an Associate Professor of Law at St. Thomas
University School of Law, and a former Deputy Mayor fo r the City of New
Orleans. He received his B. A. in Political Science from Southern University at
New Orleans and J.D. from the University of Wisconsin Law School. The author
gratefully thanks all who have supported and contributed to this Article, including
the administration, faculty, and staff of St. Thomas U niversity School of Law, as
well as the members of the Southeast/Southwest Peo ple of Color Legal
Scholarship Conference, and the John Mercer Langston Black Male Law Facult y
Writing Workshop. The author is particularly grateful to Dean Raymond T.
Diamond and Professor Mitchell F. Crusto for their comments, support, and
mentoring. The author is also grateful for the research assistance of Alexis A.
Peacock, Alicia N. Diaz, Frank R. Cannata, Ana Perez-Dorrego, and Dania L.
Sancho. Thank you also to Ceeo n D. Quiett Smith for her tireless dedication and
1. Ashley Parker, ‘Corporations Are People,’ Romney Tells Iowa Hecklers
Angry Over His Tax Policy, N.Y. TIMES (Aug. 11, 2011), http://www.nytimes.com
/2011/08/12/us/politics/12romney.html [https://perma.cc/AZB5-A3HE] (“Mitt
Romney was confronted on Thursday by hecklers on corporate tax policy and told
one of them, ‘Corporations are people, my friend.”’).
2. Kurt Badenhausen, Technology Brands Rule The Top 25, FORBES (May 13,
2015), http://www.forbes.com/powerful-brands/ [https://perma.cc/HJ5S-7FZ4]
(ranking Coca-Cola and McDonald’s, along with six other American companies,
among the ten most powerful brands in the world). See also Daniel Roberts & Leigh
Gallagher, 40 Under 40, FORTUNE (Sept. 24, 2015), http://fortune.com/40-under-
40/taylor-swift-6/ [https://perma.cc/LJN4-BJAD] (ranking Taylor Swift the sixth
76 LOUISIANA LAW REVIEW [Vol. 77
and organizations have also shared undesired notoriety and public scorn
because of their own wrongdoing and that wrongdoing committed on their
behalf. Mere mention of Enron, Arthur Andersen, WorldCom, and BP by
name can evoke strong emotional responses similar to those caused by
uttering Bernard Maddoff or Charles Ponzi himself.3 Key disparities exist,
however, in the sentencing approaches for organizations and individuals
under the Sentencing Reform Act of 1984 (“Reform Act”) and attendant
sentencing guidelines.4 Most profound are the disparities exhibited by the
goals articulated for sentencing organizations and individuals, as well as
the availability of incarceration as a sentencing option for individuals, but
not for organizations. Courts and scholars justify this disparate treatment
with the historical and commonly accepted philosophy that juridical
persons have no soul to damn.5 The Supreme Court’s decision in Burwell
v. Hobby Lobby Stores, Inc., (“Hobby Lobby”) recognizing religious rights
for business corporations, implicates the existence of a corporate soul and
corresponding criminal culpability and justifies greater alignment of
sentencing options for individuals and organizations.6
Part I of this Article explores the history and policies that explain th e
disparate sentencing treatment of organizations and individuals under the
Reform Act and attendant sentencing guidelines. Part II examines the
history and evolution of personhood theories underlying these policies and
resulting statute and guidelines. Part III examines the Hobby Lobby
decision and how the Supreme Court’s recognition of a business
corporation’s religious rights necessarily implicates the existence of a
corporate soul, making those entities morally culpable and justifying
greater alignment of the goals and sentencing options provided in the
Reform Act and attendant guidelines. Part IV addresses the arguments
most influential person under 40 years old); Tyler Conway, LeBron James Passes
Michael Jordan as America's Favorite Athlete in Harris Poll, BLEACHER REPORT
(Jul. 17, 2014), http://bleacherreport.com/articles/2133370-lebron-james-passes-
-QH4X] (ranking LeBron James ahead of Michael Jordan, Derek Jeter, and Peyton
Manning in a Harris Poll measure of America’s favorite athlete, measured after
LeBron’s return to play for the Cleveland Cavaliers).
3. Mary Darby, In Ponzi We Trust, SMITHSONIAN, http://www.smithsonian
6VAX] (last updated Dec. 19, 2009).
4. See infra Part I (discussing Se ntencing Reform Act of 1984).
5. John C. Coffee, Jr., “No Soul to Damn: No Body to Kick”: An Unscandalized
Inquiry into the Problem of Corporate Punishment, 79 MICH. L. REV. 386, 445 (1981).
6. Burwell v. Hobb y Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
2016] INCOMPLETE SENTENCES 77
against amending the Reform Act and attendant guidelines for greater
alignment of individual and organizational sentencing. The Article
concludes that the Reform Act and attendant sentencing guidelines should
be amended to better reflect the organizational soul and corresponding
criminal culpability implicated by the Hobby Lobby Court’s recognition
of business corporations’ religious rights.
I. AN OVERVIEW OF THE HISTORY AND PURPOSES OF THE
FEDERAL SENTENCING GUIDELINES
The Reform Act, part of the Comprehensive Crime Control Act of
1984,7 established the United States Sentencing Commission ( the
“Commission”) as an independent agency of th e judicial branch of the
federal government. The Commission, under Congressional oversight, is
charged with regulating and standardizing federal sentencing policies and
procedures for convicted individuals and organizations.8 The Commission
promulgated the original set of Federal Sentencing Guidelines in 1987 to
further two articulated goals of the Reform Act—preventing and deterring
criminal conduct.9 However, at the time, the Commission did not
promulgate final guidelines for the sentencing of organizations “[d]ue to
the complexity of the subject matter and the tight deadlines imposed by
the Sentencing Reform Act.”10 While finalizing the individual sentencing
guidelines, the Commission began yielding to the perspective “that
corporate offenders were neither exempt nor should be exempted from
7. Pub. L. No. 98-473, 98 Stat. 1837 (1984) (codified at 18 U.S.C. § 3551;
28 U.S.C. §§ 991–998).
8. John R. Steer, Changing Organizational Behavior—The Federal Sentencing
Guidelines Experiment Begins to Bear Fruit (Apr. 26, 2001) (unpublished paper
presented at the Twenty-Ninth Annual Conference on Value Inquiry, Tulsa,
Oklahoma) (on file with author), http://www.ussc.gov/sites/default/files/pdf/train
9. Diana E. Murphy, The Federal Sentencing Guidelines for Organizations:
A Decade of Promoting Compliance and Ethics, 87 IOWA L. REV. 697, 699–702
(2002); 18 U.S.C. § 3553 (a)(2)(B) (1994) (stating that sentences should “afford
adequate deterrence to criminal conduct”); see also 28 U.S.C. § 992(b)(1994)
(requiring the Commission to promulgate guidelines “to assure the meeting of the
purposes of sentencing as set forth in section 3553(a)(2) of title 18”).
10. U.S. SENTENCING COMM’N, SUPPLEMENTARY REPORT ON SENTENCING
GUIDELINES FOR ORGANIZATIONS 1 (1991) [hereinafter SUPPLEMENTARY REPORT].