Justice for the Poor and Unfortunate, but Only If Corporate Crime is First Rendered Unenforceable

A large number of wealthy corporate leaders have been willing to expend their fortunes trying to eliminate the government and the social contract under which they have acquired their wealth.  This somewhat counterintuitive trend is explained at length in Jane Mayer’s book Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right. 

It is remarkable how many corporate leaders who have been charged or threatened with legal actions because of crimes they have committed are now ardent small-government, anti-regulatory enthusiasts.  Apparently being fabulously wealthy is insufficient; one must also be free from the inconveniences of the rules and regulations that society has decided it needs.  The Koch brothers and their Koch Industries conglomerate provide the best example of people who have sinned mightily and are willing to spend a lot of time, money, and effort to ensure they can continue to sin mightily.  Surprisingly, the mechanism for providing themselves with this freedom is support for criminal justice reform.

The system of criminal justice in the United States is certainly in need of reform.  As crime rates have fallen dramatically over the past few decades, financial and political incentives have created an efficient mechanism for sweeping people up off the streets, convicting them of trivial crimes, such as drug possession, and incarcerating them for long periods.  This development has been accompanied by an almost complete lack of convictions for those who commit crimes of corporate malfeasance.  The absurdity of this system has become apparent at all levels of government as costs have become prohibitive.  Bipartisan attempts to address excessive rates of incarceration have arisen even in dysfunctional Washington.  Outrageously, such attempts have come to naught because some Republican politicians are insisting that their corporate overlords are in even further need of protection from criminal prosecution.

Mayer provides an update on some relevant Koch brothers’ activities in an article for The New Yorker: New Koch.  The Kochs’ interest in criminal justice arose from a criminal case brought against one of their facilities in 2000.

“In that case, a whistle-blower who worked for a Koch refinery in Corpus Christi, Texas, told authorities that the company had covered up the fact that it was “hemorrhaging” benzene, a known carcinogen. The Justice Department mounted what David Uhlmann, who then oversaw the department’s environmental-crimes section, has called “one of the most significant cases ever brought under the Clean Air Act.” In a settlement, the original ninety-seven charges were dropped, including criminal charges against four company employees, but Koch Industries pleaded guilty to one count of concealing information from the government about its discharge of benzene. The company agreed to pay a ten-million-dollar fine, and to pay ten million more to improve the environment in Corpus Christi.”

What most would consider a slap on the hand for an insidious crime, was instead viewed by the Kochs as a dangerous overreach of government power.  The Kochs’ interest in criminal justice is aimed at ensuring that they, and others like them, will never again have to worry about prosecution for crimes.

“In 2004, the company gave the National Association of Criminal Defense Lawyers money to help it start a new initiative that would focus on ways to strengthen white-collar-criminal defense. The initiative featured numerous joint projects with the conservative Heritage Foundation, which also was determined to combat “over-criminalization.” The anti-government tenor of the effort meshed perfectly with the Kochs’ outlook.”

Advisors to the Kochs knew they would never attain their goals if they acted blatantly in their own self interest.  Consequently, they generated a strategy that would ultimately allow their representatives to participate directly in criminal-reform efforts.  This included support for programs that served the minority groups most affected by mass incarceration.

“Norman Reimer, of the National Association of Criminal Defense Lawyers, insists that the Kochs’ long-standing support for criminal-justice reform ‘is deeply principled and not window dressing…. Reimer acknowledges that until recently the company had funded mainly programs involving white-collar crime. Reimer told me that for years he had been asking Koch Industries to donate funds to support indigent defense, but it didn’t do so until 2014. At that point, Reimer says, the company provided a ‘significant six-figure’ grant to train and support public defenders. That grant, while much needed, was less than a tenth of what Koch Industries spent on its corporate-image ads that year.”

A few tiny investments provided the Kochs and their allies with a glimmer of respectability, and allowed them access to legislators working on policy changes.  Rena Steinzor records what transpired in an article for The American Prospect: Dangerous Bedfellows: The Stalemate on Criminal Justice Reform (for some reason, it is not available online).

“In February 2015, a startling collection of strange political bedfellows assembled to promote mass-incarceration reform at all levels of government.”

“Fiscal and libertarian conservatives (Koch industries, FreedomWorks, and Right on Crime) joined the group to emphasize the urgency of cutting prison spending, which is about $80 billion annually and unsustainable for many states, as well as the importance of freeing nonviolent offenders from government control.”

“The coalition began with the low-hanging fruit: reforms designed to eliminate mandatory minimums for nonviolent drug offenders and to give judges more discretion in sentencing other defendants.”

Progress was made and there was bipartisan support for passing a bill out of the Senate Judiciary Committee.  It was at that point that the Kochs revealed their game plan.

“But then, after months of closed-door negotiations to craft an acceptable compromise and on the eve of a Senate judiciary committee vote, what [Senator] Whitehouse describes as a ‘Trojan horse’ rumbled noisily on to the stage in the form of demands by Republican Senator Orrin Hatch that the bipartisan group add provisions to weaken white-collar criminal enforcement.  This hidden agenda was the central goal of the business conservatives, led by Charles and David Koch.  The senators refused the provisions and the committee passed the legislation without the amendment.”

The sinister logic of the Kochs held relief for mostly members of the black and Latino minorities hostage to the demands of an extremely small number of wealthy white people—who were not likely to ever be convicted of anything anyways.  When the Hatch amendment was proposed to the House Judiciary Committee, where the republican majority is greater, they were willing to consider them, and ultimately agreed to incorporate those provisions in the House version of the bill.  The Obama administration is in favor of the Senate version, and the Department of Justice is “fiercely opposed” to the Hatch provisions.  It is not clear what, if anything will come of this reform effort.

Mayer provides an assessment of what the Kochs have been after.

“According to critics, the new measures would unreasonably raise the standard required for the government to hold corporate executives criminally liable for wrongdoing; the government would have to prove that the executives hadn’t just committed a crime but knowingly done so, even in instances of dire consequence to the public, such as lethal pollution and unsafe food or drugs.”

“Uhlmann, the former Justice Department official, warned, ‘For thirty years, Congress has insisted that companies know their legal obligations, and that they fail to do so at their own peril. This legislation would erode the venerable principle that ignorance of the law is no defense.’ He went on, ‘While we need to reduce the Draconian sentences imposed on nonviolent drug offenders, the Kochs are using criminal-justice reform as a Trojan horse for their efforts to weaken environmental, health, and safety regulations’.”

In effect, what the Kochs want is for prosecutors to have to prove that individuals not only had committed a crime but also had criminal intent.  Intent is essentially impossible to prove unless the offender is dumb enough to have written a notarized confession.

Mayer even quotes Steinzor.

“Rena Steinzor, a law professor at the University of Maryland, who argued for tougher treatment of corporate crime in her 2014 book, “Why Not Jail?,” agrees with Uhlmann. ‘The Koch brothers are playing a long game that has as its ultimate goal reducing the federal government to a size so small it is difficult for us to comprehend,’ she warns. ‘It would literally be confined to currency, roads, and foreign affairs. Public-health protections would be gone’.”

Mayer also quotes Jeffrey Winters, a political-science professor at Northwestern University on why we should be concerned about the ability of the wealthy to control our legislators.

“Winters notes that ‘one of the greatest challenges in history has been to create legal governing institutions that are stronger than the strongest people in society. Oligarchs have long deployed their wealth and power to free themselves of constraints that others in society face’.”

It is not clear who presently has more power—society or the wealthy Koch brothers.