Until recently, progressives have largely embraced the involvement of the billionaire industrialists Charles and David Koch in the push for criminal justice reform, including changes in mandatory minimum sentencing laws.
Before conservative activists embraced the issue, the crisis of mass incarceration had largely languished on the back burner. But the involvement of the Kochs and an unusual left-right coalition of conservative and liberal activists helped push sentencing reforms to the front burner on Capitol Hill.
But now progressives are looking at the Kochs' involvement with a more skeptical eye. A House bill introduced last month by Representative James Sensenbrenner, a Republican from Wisconsin, includes a provision that critics say would undermine corporate criminal prosecutions by requiring proof that a defendant knew his or her actions were illegal in order to be found guilty.
Known as "mens rea" in legal parlance, the provision would make it harder for prosecutors to prove corporate wrongdoing. Conservatives say the provision could prevent "morally blameless individuals and entities" from being burdened with criminal convictions for life. But critics on the left say it just raises the bar for prosecuting white-collar crimes-like the ones such corporate titans as the Kochs might be accused of.
Last month the House introduced a measure that addressed criminal justice reforms. Sensenbrenner's Criminal Code Improvement Act of 2015 includes a provision that some say undermines corporate criminal prosecution by requiring prosecutors to prove that the defendant knows the law, or that a reasonable person would, and that the crime was committed knowingly.
"They absolutely do want that corporate crime provision," says Robert Weissman, the president of Public Citizen. "According to them, it's good policy." Public Citizen put out a statement last month criticizing the provision saying that it, "aims to solve a problem that doesn't exist, in a vehicle where it doesn't belong."
The controversy has been threatening to unravel the left-right coalition that has rallied behind criminal justice reform, which includes such players as the ACLU and the Open Society Foundation on the left, and Right on Crime and Heritage Foundation on the right. But in a confidential meeting last week, the >Washington Post has disclosed, Koch Industries representatives agreed that the provision should be dropped if it jeopardizes the criminal justice overhaul. They have said that they support the Senate version of the criminal justice legislation, which does not include the mens rea provision.
Whatever the outcome, the mens rea fight also raises an important question: Are the Koch brothers motivated by self-interest or compassion when it comes to criminal justice reform?
The Kochs and their conservative allies say the issue is one of fiscal responsibility and personal freedom. They argue that it costs too much to imprison so many people and the government shouldn't be punishing citizens for low-level and victimless crimes.
But the Kochs have personal reasons for getting involved, too. Charles and David Kochs' fight for criminal justice reform began in the 1990s, when the Justice Department filed a criminal case against Koch Industries claiming that the company covered up the release of hazardous air pollution at oil refinery in Texas, in violation of the Clean Air Act.
Koch Industries pleaded guilty and paid a $20 million penalty. According to Koch Industries' general counsel and senior vice president, Mark Holden, the Koch brothers had no criminal intent-but the Justice Department still pursued the case anyway. The Department of Justice denied that the case against Koch Industries was groundless. The provision at issue in Sensenbrenner's bill, known as the Criminal Code Improvement Act, directly addresses these kinds of cases.
Nevertheless, Holden has said that Koch Industries would still support the bill even if the corporate criminal provision were excluded.
And organizers at the Charles Koch Institute, the leading Koch-linked entity working on the criminal justice issue, say they are committed to reforming the justice system. "No matter which bill or bills are considered," says Vikrant P. Reddy, who is a senior research fellow at the institute, "it is essential that our country grapple with the deep, systemic flaws in the criminal justice system."
Todd Cox, a Senior Fellow at the Center for American Progress who focuses on criminal justice reform, remains hopeful and says he expects the bill to move forward-without the mens rea provision. To Cox, criminal justice reform is about tackling our mass incarceration problem. "You don't need that provision in order to reform criminal justice," he says.
For all the strains the mens rea fight has introduced, Weissman, for one, is prepared to give the Kochs the benefit of the doubt. He says he doesn't believe that the Koch brothers are disingenuous in their crusade against mass incarceration.
"There's no reason to believe they don't," he says. "They just also believe in helping corporate criminals get off the hook."
This story has been updated.
