Nel's New Day

December 17, 2015

Prison Reform: Don’t Trust the Koch Brothers

The United States is the largest police state in the world, with more prisoners than China or Russia both in absolute numbers and as a percentage of the population. Charles and David Koch, worth over $100 billion by ripping off the middle class and poor as well  as heavy investors in the oil industry, are now backing a bipartisan attempt to reduce the number of incarcerated people in the U.S. which has the highest imprisonment rate in the world, especially burdening the poor and people of color.

While the press has been complimentary about the Koch brothers’ efforts in this arena, the two wealthy men may have a nefarious motive—protecting their corporations to block prosecution of corporate violations of environmental and financial laws designed to protect the public. Their proposed changes would, at the public’s expense, effect more problems in holding executives and their employees responsible for violating U.S. laws while protecting financial interests of the wealthy and corporate leaders. For at least five years, the Kochs and their American Legislative Exchange Council (ALEC) have pushed to increase the “intent” standard for criminal violations, particularly for so-called “white collar” crime and executive suite criminals. The result would provide huge benefits for Koch Industries and their corporate friends.

After the Senate passed bipartisan legislation to make the criminal justice system fairer, the House took a Koch idea that has now passed its Judiciary Committee. Rep. Jim Sensenbrenner’s (R-WI) bill fails to address mass incarceration but instead requires prosecutors to prove that a person or corporation “knowingly” engaged in illegal conduct and additionally “knew” or should have known that the conduct violated federal law. If passed, the bill “would make it much harder for prosecutors to criminally prosecute companies that swindle the public, endanger their workers, poison the environment or otherwise imperil consumers,” said Rob Weissman, President of Public Citizen. Koch Industries is one of Sensenbrenner’s top contributors in this election cycle.

An “intent” requirement called “mens rea” requires that prosecutors prove a person intended to cause harm and violate the law before imposition of long prison sentences. Criminal laws for acts of violence typically have this mandate, but federal law does not have to prove intent in many federal laws for white collar crimes such as environmental violations and financial crimes under the Dodd-Frank financial reform law. For example, federal law does not require proof that a company or its leaders intended to violate the law by polluting waterways or crashing the economy. Just the existence of these acts can hold corporations and their leaders criminally liable because of complexity of hierarchy and authority.

The Upper Big Branch Mine disaster killing 29 workers from cost-cutting led to an unusual criminal conviction for the former CEO of Massey Energy. This conviction could not happen with the Koch brothers’ bill in the House. Frank O. Bowman, law professor at the University of Missouri, explained:

“Requiring that prosecutors prove that a corporate executive is both consciously aware of the conduct of their subordinates and consciously aware that the conduct of those subordinates violates criminal law is very, very difficult. This would make [white collar] prosecutions more difficult than they now are, and they are already hard.”

Over-incarceration is not a problem for corporations and their leaders because the Justice Department has a large number of deferred prosecutions in exchange for defendants’ promises not to break the law in the future. Koch’s “intent” standard on all federal crimes would undermine the few corporate criminal prosecutions that could take place. Sensenbrenner’s bill prevents such guilty pleas as the one from Jensen Farms, that killed 33 people from a failure to follow food safety standards with its cantaloupe. The default intent requirement would lessen prosecutions of violations in the Clean Water Act, the Clean Air Act, the Endangered Species Act, the Resource Recovery and Compensation Act (RCRA), etc.

Naturally the Koch brother’s bill protects the Koch Industries. In 2000, Forbes reported that “a federal grand jury indicted the privately held company and four of its employees in September on 97 related charges for alleged violations that took place at the company’s refinery in Corpus Christi, Tex.” The Koch brothers may not have deliberately intended to spew 91 metric tons of toxic chemical benzene into the air and water before hiding their actions from federal investigators. Yet the lack of protections and emissions monitoring resulted in 15 times the legal limit of benzene to be emitted from the refinery. Benzene is a Group 1 carcinogen causing acute myeloid leukemia, lymphocytic leukemia, non-Hodgkin’s lymphoma, multiple myeloma, reduced production of bone marrow, suppression of T-cells, chromosomal aberrations, reduction of birth weight, and other health problems.

The Koch brothers donated $378,500 directly to George W. Bush’s campaign and the GOP as well as unknown quantities of money to other groups. Bush’s AG, John Ashcroft, reduced the charges for violations, which could have cost the company over $500 million, and dropped all except one count for the Koch Petroleum Group. Koch paid only $20 million.

The Koch brothers said that this experience inspired their interest in criminal justice reform. For example, Koch Industries Associate General Council Marsha Rabiteau gave a presentation titled “Overcriminalization: Liberty, and More, At Risk for Corporations and Their Employees,” with the “intent” requirement to solve any prosecution of corporations. Heritage Foundation has an “Overcriminalization” project, and the Koch-backed National Association of Criminal Defense Lawyers has a report called “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law.”

Rabiteau also maintains that corporations cannot form any “intent” to be held liable for a criminal act—despite the Supreme Court’s declaration that a corporation is a “person” for the purposes of “free speech.” She argues corporate criminal justice law reform is vital to punish wrongdoers “with laws that are clear and adhere to our Anglo-American heritage.” This reference furthers separates white collar criminals from a criminal justice system that largely falls on non-Anglo-Americans.

The debate over the Dodd-Frank financial reform bill in 2010 led to two Koch-backed groups, the National Association for Criminal Defense Lawyers (NACDL) and the Heritage Foundation, issuing a comprehensive joint report and project, “Without Intent,” criticizing “overcriminalization” and the lack of intent requirements in the federal criminal code. The report’s co-author, Tiffany Joslin, is Deputy Chief Counsel for the House Judiciary Crime Subcommittee—chaired by Sensenbrenner—and the report has been repeatedly cited in the congressional debate on criminal justice reform. Fortunately, even intense lobbying didn’t keep “intent” out of the Dodd-Frank Act criminal provisions–at least then. A large part of Koch brothers’ business comes from oil speculation; they created the first oil derivatives in 1986 and worked with then-Sen. Phil Gramm to deregulate energy speculation with credit default swaps in 2000 with the “Enron Loophole.”

Although the Koch brothers’ NACDL received positive press, the group has a large section focused on helping some of the wealthiest white-collar defense firms in the country and reshaping the law to address “overcriminalization” just for corporations. The current Director of NACDL’s White Collar Crime Project, Shana-Tara Regon (now Shana-Tara O’Toole), has testified on Capitol Hill in favor of an intent requirement for white-collar crimes. She has also co-authored op-eds with the Heritage Foundation favoring intent laws, and has represented the organization on the “Congressional Task Force on Overcriminalization.” In 2011, Regon testified before Congress to put “intent” into the white collar crime law, the 1977 Foreign Corrupt Practices Act (FCPA), which prohibits U.S. corporations from bribing foreign public officials. The FCPA prosecutes an average of 14 cases per year. While Regon testified, the Kochs were involved in a bribery scandal in France.

The Koch-backed ALEC, which increased the number of prisoners and length of prison time through its success in “three strikes you’re out” and “truth in sentencing” bills, now criticizes the lack of intent for white collar crimes. An ALEC focus, however, is prison privatization to benefit its corporate funders such as Corrections Corporation of America (CCA). When Walmart started funding ALEC, the group pushed bills to create mandatory minimum sentences for shoplifting, enacted new penalties for retail theft, and even added sentencing enhancers for using an emergency exit when shoplifting to fill the private prisons. For corporations however, ALEC adopted the Criminal Intent Protection Act as a “model” bill for states to impose a strict criminal intent requirement.

At the same time as the publication of Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, ALEC and other Koch-backed groups worked on voter suppression laws to greatly decrease voting power for people of color. The high-level Koch operative Mike Roman led the perpetuation of voter fraud myths through race-baiting after Barack Obama was elected president.

When the Koch brothers talked about incarceration reform, I had a slight ray of hope. It’s gone.

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