Incomplete Sentences: Hobby Lobby's Corporate Religious Rights, the Criminally Culpable Corporate Soul, and the Case for Greater Alignment of Organizational and Individual Sentencing

• Author: Kenya J.H. Smith
• Position: Kenya J.H. Smith is an Associate Professor of Law at St. Thomas University School of Law, and a former Deputy Mayor for 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...
• Pages: 75-108

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

INTRODUCTION

“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

support.

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-

michael-jordan-as-americas-favorite-athlete-in-harris-poll [https://perma.cc/DYK8

-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

mag.com/people-places/in-ponzi-we-trust-64016168/?all [https://perma.cc/Z8UT-

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

ing/organizational-guidelines/selected-articles/CorpBehavior2.pdf [https://perma.cc

/AHW8-XLSX].

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].