One of the more improbable mixed marriages of the past year or so joined the billionaire Koch brothers, Charles and David, powerhouse bankrollers of right-wing candidates and causes, with the ACLU and other champions of liberal values in an alliance to push for reforms of the criminal justice system. Charles is the brother with the passion for this subject, and Mark V. Holden, senior vice president and general counsel of Koch Industries Inc., is the man who speaks for him. Bill Keller engaged Holden in a correspondence on the Koch doctrine of criminal justice. The transcript has been edited for length and clarity.
The Marshall Project: Let me start with a big, broad question. Critics across the ideological spectrum say the criminal justice system is “broken.” But they don’t always mean the same thing. What do you see as fundamentally wrong with the way the system works today?
Mark Holden: The fundamental problem with our current criminal justice system is that it is a two-tier system. The wealthy and connected experience dramatically better treatment than the poor, and guilt and innocence are often irrelevant. That is immoral, constitutionally dubious, and fiscally ruinous. We spend more than $250 billion per year on our entire criminal justice system, including over $80 billion a year on incarceration, which is three to four times more than we spend per capita on public primary and secondary education.
As Harvard Professor Bruce Western has noted, the current system creates barriers to opportunity for the least advantaged and has produced a “poverty trap” — a cycle of poverty, despair, and incarceration “at the very bottom of American society.” One extremely troubling example of this is that experts and commentators, including Judge Alex Kozinski and Judge Jed Rakoff, have observed that innocent people now plead guilty to crimes they did not commit. None us can or should be comfortable with that.
Another fundamental problem is that since the start of the War on Drugs, there has been a dramatic shift in the balance of power in our system away from judges to prosecutors. For instance, we aren’t sure how many federal criminal laws there are, but estimates are that there are somewhere between 4,500 and 6,000. Given this explosion in the number of statutory crimes, the advent of mandatory minimum sentences, and the prosecutor’s control of the grand jury process, prosecutors now have too much power and have, in many instances, become prosecutor, judge, jury, and executioner.
We also need to fix our indigent defense programs so that the promise of Gideon v. Wainwright and the 6th Amendment right to counsel are a reality for all defendants whenever they are charged with a crime that could lead to loss of liberty, including misdemeanors. In addition, we need to allow judges to make determinations based on the facts of the crime and the individual before them to ensure that the punishment fits the crime. We should reject the labels “soft on crime” and “tough on crime,” and instead be smart on crime and soft on taxpayers. For those who are incarcerated, especially non-violent offenders, the prison experience should be about reform, rehabilitation, and redemption rather than revenge, reprisal, and retribution.
And finally, we need to reform how we allow individuals to reenter society after serving their sentences. Currently, there are tens of thousands of government-imposed restrictions on ex-offenders that limit their ability to get a meaningful job, housing, student or business loans, credit cards, and vote. We make it difficult for people to turn their lives around once they have a brush with the law. This creates hardships for the ex-offenders and their families, and leads to the increased human and societal costs of recidivism and reincarceration.
TMP: What principles should govern reform of the system?
MVH: We should be guided by the Bill of Rights, first and foremost. Four of the ten amendments in the Bill of Rights deal with criminal justice issues – the 4th, 5th, 6th, and 8th Amendments. Our Founders were sending us a message that the greatest threat to liberty would come through the criminal justice system. It should be a very high bar before the government can take away someone’s life, liberty, property, and pursuit of happiness.
We also need to recognize that everyone is worthy of and capable of redemption. With 97 percent of those who are imprisoned reentering society at some point, it is in all our interests to ensure that offenders are provided training and programs while in prison that make them better people coming out than when they went into prison.
In the United States, the poorest and the least educated among us make up the vast majority of those who are imprisoned. That was true back in the 1980s when I worked in a prison during my college days in Worcester, Massachusetts, and it remains true today. We should make sure that we have quality education programs in impoverished communities and that there are real employment opportunities in these communities. Many of the issues that end up being handled through the criminal justice system could potentially be avoided if there were educational and vocational opportunities in all of our neighborhoods and communities.
TMP: My first reaction to these initial answers was, I could imagine Bernie Sanders incorporating much of this language into a campaign speech. My second was, this does not sound like a way to cut government spending; by the time you’ve paid for adequate indigent defense, treated the drug addicts you’ve spared from incarceration, and provided quality education to the poorest communities, haven’t you consumed all the money you saved by shrinking prison populations – and then some? How does that square with Mr. Koch’s politics, which, as I understand them, rest on a bedrock belief in less government?
MVH: I have not heard Senator Sanders lay out a comprehensive approach to criminal justice reform similar to what we at Koch have been discussing. As we all know, the issues that need to be addressed in our system were created in a bipartisan manner. In fact, when Mr. Sanders was in the House of Representatives, he voted in favor1 of the 1994 Omnibus Crime Bill that led to many of the over- criminalization and over-incarceration issues that now need to be addressed.
You are correct that Koch favors less government intrusion into people’s lives, particularly at the central federal government level. Our point of view on criminal justice reform is completely consistent with Charles Koch’s classical liberal views of limited government and expansive individual liberty.
We need to downsize the criminal justice system because, among other reasons, it is a prime example of a ruinous failed big government program that has wasted trillions of dollars and ruined untold lives over the past 30-plus years. Left, center, and right all agree on this, and it is the rare example where even the left doesn’t think that the solution to a failed big government program is more government.
We believe that if changes to the criminal justice system are made consistent with the principles laid out in my prior response, billions of dollars wasted on incarceration and other aspects of the system would be saved and it could free millions of people from poverty. Indeed, a Villanova University study concluded that “had mass incarceration not occurred, poverty would have decreased by more than 20 percent, or about 2.8 percentage points” and “several million fewer people would have been in poverty in recent years.”
TMP: You're right that Senator Sanders has not (at least not yet) offered a comprehensive plan on criminal justice. I meant that he would be very comfortable with your general theme, that we have one justice system for the rich, and another, far shabbier one for those less well off. I'll come back to the politics of this later, but two quick points of clarification. First, I know that Charles Koch prefers that term "classical liberal" to the terms often applied to him, "libertarian" or "conservative" (sometimes with a prefix like "arch-"). Perhaps you can briefly explain the difference. And where else, besides incarceration itself, would you like to see the government cut spending on the criminal justice system? Police? Courts? The Department of Justice?
MVH: As Charles Koch has explained, “A classical liberal is someone who wants a society that maximizes peace, stability, tolerance and well-being for everyone. One that opens opportunities for everyone to advance themselves, that opens it to innovations that improves people’s lives and a society in which people succeed by helping others improve their lives. And that’s what I’m working for.”
In contrast, the term “libertarian” can have many different meanings and interpretations, including those who believe in no government, no national defense, and/or extreme individualism above all else and at the expense of others. Thus, Charles does not consider himself a libertarian, but a classical liberal.
With regard to where else spending can be cut, we believe the entire criminal justice system has unprofitable spending and waste associated with it. For example, law enforcement should be allowed to focus on dangerous offenders, rather than focusing heavily on low level alleged offenders, drug addicts, and people with mental health issues. If this were to occur, it would reduce spending and waste in the entire justice system – from arrest, pretrial, trial, incarceration, and reentry – because there would be fewer offenders in the system.
TMP: Can you give me some examples of criminal offenses that you think should be handled with civil or regulatory penalties?
MVH: If you haven’t already done so, you may want to check out @CrimeADay on Twitter, which offers numerous examples of criminal offenses and penalties that should probably be handled with civil penalties and should not even be crimes in the first place. Because the human, societal, and fiscal costs of a criminal record are so dramatic (felony or misdemeanor), we believe that criminal law and criminal punishment should be reserved for behavior that poses a threat to safety and security. Generally speaking, we believe that the criminal law should focus on activities that involve violence, fraud, theft, and/or intentional destruction of property. And we should strive to use the least amount of force necessary to bring about compliance by the individual.
TMP: Conservatives and progressives in the reform coalition seem to agree that "overcriminalization" is one of the problems with criminal justice in America – that there are simply too many aspects of human behavior that lawmakers have criminalized. But "mens rea" reform, the push to ensure that criminal intent is a component of every criminal charge, has generated far more support from conservatives than progressives. Your allies on the left seem suspicious that the mens rea push is mostly a pro-business ploy designed to undermine costly regulatory laws (like environmental and food safety laws) and eliminate the concept of "strict liability" that corporations have been protesting for decades. What's in mens rea reform for the average person? Isn't he or she already protected from laws that could generate prison sentences without a finding of a guilty mind?
MVH: Criminal intent standards protect all Americans, regardless of race, gender, or socioeconomic status. Criminal intent standards should exist for all crimes in our opinion – from the streets to corporate suites and everything in between. No one – not those of limited means, the working class, the middle class, or the wealthy – is protected from criminal laws that could generate prison sentences without a finding of a guilty mind. While the wealthy are much better capable of fighting the government’s charges, that does not mean that the government is prohibited from criminally charging anyone based on the numerous federal and state criminal statutes.
Given the explosion in the number of crimes, the advent of mandatory minimum sentences, and the prosecutor’s almost unfettered control of the grand jury process, prosecutors now have so much power that innocent people now plead guilty to crimes they did not commit. In fact, during 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed. I do not know what the demographics are of the 97 percent who pled, but most of them probably did not possess the resources to defend the charges brought against them and thus made, at some level, an economic decision to plead. While the wealthy and connected generally have the resources to defend against the prosecutors, the poor do not. When prosecutors are not statutorily mandated to prove criminal intent of every criminal charge, what results is that those with limited resources will most likely plead guilty to a crime even though they are innocent. None of us can or should be comfortable with that.
The booklet “USA vs. You,” provides specific examples of average people who were prosecuted and suffered criminal penalties for conduct that they did not know was criminal, and most often, pled because they did not have the resources to fight the government. All these individuals likely suffered collateral consequences as a result.
The ordinary people profiled in “USA vs. You” made mistakes, but faced criminal consequences that ruined their lives. The EPA employees in the Animas River disaster were negligent and made mistakes, which resulted in 3 million gallons of toxic wastewater being spilled into the Animas River. But the EPA employees and the agency were not criminally prosecuted. We agree with this outcome, but had these EPA employees been private sector employees, we doubt that their actions would have been deemed “mistakes” or “an accident.”
Despite the impression that only conservatives are pushing “mens rea” reform, this is, has been, and must be a nonpartisan issue. Progressive Members of Congress have actually highlighted and advocated for criminal intent reform since at least 2009 – below are the links1 to the hearings and the testimony, and we have highlighted relevant portions of the documents for your convenience. In short, this should not be a partisan issue because it protects all Americans. The State of Michigan enacted mens rea reform late last year, after it passed the Michigan Legislature unanimously. The ACLU Michigan stated that, “The consequences of criminal liability are devastating, and citizens should not be convicted of crimes unless and until it has been proven that they actually intended to break the law. . . This legislation helps to ensure the integrity and effectiveness of a system that is intended to punish the guilty and acquit those whose guilt has not been proven.”
TMP: Some of your allies in the reform alliance say that prison populations can be cut in half. Is that a realistic goal?
MVH: I don’t know. We haven’t approached the issue with an eye towards what is the optimal or desired size of the prison population. We believe that the entire criminal justice system needs to be reformed. If that occurs and we have the correct principles, practices, and incentives in place with regard to our system, then overtime we should see a substantial reduction in the prison population.
TMP: Mr. Koch has talked of the absurdity of throwing someone into prison for smoking a joint. How far would you go in rolling back the "war on drugs?" Decriminalization? Legalization? Of marijuana alone, or other drugs as well?
MVH: We need to be much smarter on how we address and punish drug usage in this country. In many situations, we are treating a public health issue (addiction) with criminal remedies and that does not make sense. With regard to marijuana, our nation’s leaders need to decide whether it should be legal or not. Right now personal possession and/or usage of marijuana is legal or has been decriminalized in several jurisdictions, but it is illegal under federal law, and that federal law is not consistently applied.
TMP: “Our nation’s leaders need to decide…” But what’s the right decision, consistent with the principles you’ve articulated?
MVH: We have not taken a position on this issue as a company. Speaking for myself, I believe that personal marijuana usage and possession should be decriminalized.
At a minimum, we believe that courts should have the discretion to be more lenient with low-level drug offenders, which is the approach in the Senate criminal justice reform bill. This could include many options such as drug courts, decriminalizing certain activities or uses, drug treatment, or other diversionary programs. We also should revisit how drug crimes are prosecuted based on the weight of the narcotics at issue, and how certain lower-level offenders get longer sentences than leaders of a drug cartel due to, among other reasons, how conspiracy law is applied.
TMP: Mr. Koch has said the event that got him actively involved in these issues was a 1995 Texas case against Koch Industries over the coverup of chemical pollution at a Koch refinery. What was it about that case that made it his wakeup call?
MVH: The Corpus Christi case was a grave miscarriage of justice. There was no cover up. Four of our employees were indicted by the Department of Justice on 97 counts (later reduced to 7 and ultimately all charges were dropped against them after a 6 year ordeal.) We believe that DOJ over- prosecuted this case, and we also learned of foul play with key evidence in the grand jury process. Someone altered an official government record that was used in the grand jury to excise information that showed our employees fully disclosed the noncompliance in the first meeting with the Texas state regulator. The alteration supported the government’s flawed and untrue allegations that our employees didn’t disclose this information.
In 1995, our Corpus Christi refinery discovered that someone had filed an inaccurate quarterly report with the Texas state environmental regulator regarding benzene emissions. In response, the individual responsible for the inaccurate report was separated from the company. In November 1995, our employees met with the regulator to disclose the issue. At that meeting, our employees told the regulator that the refinery was out of compliance, that they were working to bring the refinery into compliance, and that they would report back with the details after the investigation, which they did.
The government’s case against the company and our employees ultimately collapsed after the company finally had an opportunity to challenge the government’s key expert witness in a hearing before the federal judge less than a month before the trial’s scheduled start. The government’s expert witness testified that sampling evidence used to prove criminal or civil violations of the benzene regulation must be collected and analyzed according to strict, specific protocols set forth in EPA’s regulations. However, on cross-examination by a company lawyer (the first time the company and the other defendants had a chance to examine any government witness), the government’s expert witness admitted that the samples he and the government relied upon for the basis of their prosecution of Koch and the other defendants were not taken in a way consistent with EPA’s rules. He also admitted that he never visited the Koch facility at issue, that he had no first-hand knowledge how the samples were taken, that the samples relied upon by the prosecution admittedly did not follow EPA requirements, that the government did not conduct any independent verification of the samples, and that the witness had never before tried to use in court samples similar to the unreliable samples the government was relying upon in its prosecution of Koch and the individual defendants.
After almost 6 years, the government’s case toppled quickly after that, with the dropping of all the counts against Koch Petroleum Group, Koch Industries, and the four individual defendants. As part of the settlement, the government required the four individuals to agree not to sue the government for malicious prosecution. Koch pled guilty2 to the original inaccurate report that it self-disclosed in November 1995.
After that experience, Koch got involved in criminal justice reform to see if we could address some of problems we saw firsthand in the system. We wondered that if this could happen to a large company like ours with vast resources to defend itself, what was happening to the average citizen or small business owner who got ensnared in the criminal justice system?
TMP: Given your wariness of government power, where do you come down on the ultimate exercise of government power: capital punishment?
MVH: I have my own personal views on the issue, but Koch has not and does not plan to take a public position on the issue. It is a complicated and emotional issue, with each side of the debate making powerful points in favor of their positions. As you know, the Supreme Court has ruled that the death penalty is not a per se violation of the 8th Amendment prohibition of cruel and unusual punishment, but it does govern when and how it can be utilized. Given the number of documented imperfections in our justice system that have become more and more apparent over the past few years (including the vast number of individuals who have been wrongfully convicted who were actually innocent), it should go without saying that any use of the death penalty in those jurisdictions that permit it must be done with excruciating care and deliberation.
TMP: The last person I asked about the death penalty gave me a similar answer. (That was President Obama.) Where does self-interest figure in your (Koch's) advocacy of criminal justice reform? I'm sure you've encountered the suspicion that your main interest is in those reforms -- mens rea, asset forfeiture -- that would make it harder for the government to enforce environmental regulations and other rules that touch companies like Koch Industries.
MVH: Criminal justice reform will benefit all Americans, including those of us who work at Koch. One area where Koch has benefitted is by “Banning the Box” on our employment application. This gives potential applicants with criminal records in their past a second chance. It has helped us by increasing the available talent pool for the employees we will need to be successful in an extremely competitive global economy.
TMP: Has the company actually hired workers with criminal records?
MVH: Yes, we have hired individuals with criminal records. However, as I have stated many times, Charles’ and Koch’s focus on justice reform is not about us. Our focus on criminal justice reform is based on a desire to end the two-tier system that now exists that most adversely and profoundly impacts the least advantaged and has created intractable barriers to opportunity for them. We want to reverse that trajectory. Koch has vast resources and we always will be able to fend for ourselves in the justice system.
TMP: Last summer one of our reporters looked at elections for supreme court seats in several states. She discovered that campaigns for the bench often feature attack ads accusing incumbent judges of being soft on crime, coddling drug dealers and child molesters. The ads were often financed by companies whose real apparent interest was not electing tough-on-crime judges but electing judges who would take the business side in cases involving government regulation. Koch Industries contributed to such campaigns in Illinois and North Carolina.
MVH: None of the contributions made by Koch were for ads.
TMP: Campaign donations are pretty fungible. I guess the point is, do you see any inconsistency between advocating smart-on-crime policies and contributing to tough-on-crime judicial campaigns?
MVH: We haven’t made such contributions so I prefer to limit my comments to our activities.
TMP: In The New Yorker this week, Jane Mayer, who has a new book out on the Kochs, suggests that their embrace of criminal justice reform -- and the Koch brothers' philanthropy in general -- is part of a public relations campaign to soften their image. How do you respond to that?
MVH: It is unfortunate at a time when comprehensive, historic criminal justice reform appears close to becoming a reality at the federal level that Ms. Mayer would publish a story that attacks the hard work of Koch over more than a decade on this issue, and many other individuals and groups of good faith across the ideological spectrum. Rather than report that Koch is working cooperatively and productively with groups that have in the past disagreed with us on issues, Ms. Mayer distorts our efforts to make our criminal justice system more just, fair, and effective for all Americans, especially the least advantaged. Koch's philanthropy in general and our work on criminal justice specifically are motivated by Charles Koch's lifelong focus on helping people improve their lives and removing barriers to opportunity for the least advantaged. We look forward to continuing our work with these groups to remove barriers to opportunity for all Americans.
TMP: Privatization of criminal justice -- not just prisons, but health services, telecommunications, food services, halfway houses, parole programs and other services -- is one issue where there does not seem to be a left-right consensus. Many on the left argue that incarceration should be a state responsibility and that privatization creates an incentive to fill beds, cut corners, and stint on rehabilitation. What's your view?
MVH: With regard to the privatization of incarceration, the first question in my mind is why is there a need for it? And the answer is because many states and the federal government have blown their budgets by overspending on many issues, especially incarceration, the past few decades.
In our view, whether it is a public or private prison, prison management and employees must be judged based on the only metric that matters: recidivism rates. Therefore, if the prison management and its employees engage in practices that reduce recidivism, everyone should be rewarded. If recidivism rates are high and remain high, everyone should be held accountable, including losing funding and employment.
We should stop the practice of rewarding failure in our correctional activities. Currently, the more prisons fail, i.e., the more there is a revolving door where offenders repeatedly return to prison, the more funding the prison receives. We do not support incentives for private prisons that aren’t based on rehabilitation, reformation, and redemption of the inmates. Thus, we do not support any incentives that are based solely on, as you put it, a desire by private prisons “to fill beds, cut corners, and stint on rehabilitation.’”
TMP: How do you see this bipartisan campaign unfolding given the limited time left to this Congress? Is there hope for serious federal reform, or is it going to be a state-by-state slog.
MVH: I believe there is hope for reform at the federal level this year. There is no good reason for it not to happen at the federal level. Reforms should and must continue at the state level. Given that an estimated 2 million people are incarcerated in state prisons, states need to continue to look at common sense ways to reform their systems. In fact, the states are way ahead of the federal government on justice reform, with many states having enacted reforms years ago. Texas had a second helping of criminal justice reform last year at the state level. Already this year there are encouraging signs that New York, Maryland, Iowa, Arizona, and Illinois, among other states, are looking to reform their criminal justice systems.
Regardless of what happens at the federal level, I expect the states to continue to reform their justice systems in a way that continues to enhance public safety by reducing crime, reducing incarceration rates, reducing spending on incarceration, and giving people a chance at a productive life.
TMP: And will Koch be pressing at the state level? If so, can you give me any sense of the scale of involvement?
MVH: Yes, we will be involved at the state level, either directly or working with diverse coalitions based on where we see opportunities.
1 02/05/2014 – Press Release from House Judiciary Committee – Reauthorization
06/11/2009 – Exploring the National Criminal Justice Commission Act of 2009
07/22/2009 – Over-Criminalization of Conduct/Over-Federalization of Criminal law
House Overcrim Task Force Hearings:
06/14/2013 – Defining the Problem and Scope of Over-Criminalization and Over-Federalization
07/18/2013 – Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law
11/14/2013 – Regulatory Crime: Solution
02/14/2014 – Criminal Code Reform