Among the causes to which billionaire and conservative puppetmaster Charles Koch donates his vast wealth, his long support of criminal justice reform sticks out. While many of Koch’s pet issues cater strictly to the interests of his own moneyed class, the idea of curtailing the power of police and criminal courts is a palatable one—even appealing—to the sorts of people his cash-fueled political machine might otherwise have a hard time reaching: liberals, people of color, the poor.
Despite garnering his organization unlikely alliances with the American Civil Liberties Union and at least one Obama administration official, criminal justice reform does not at all deviate from Koch’s core political aim of radically downsizing the government. Nor is he the only major figure on the right to support ending the drug war or incarcerating fewer Americans. Even Ted Cruz has railed against mandatory minimum sentences in his presidential campaign.
But the history of Koch’s interest in the topic—which began with criminal charges against his own company that he believed were unfair—and the nature of his donations—which have focused at least as much on defending white-collar criminals as they have on ordinary people—make it natural to examine the nature of his support. Is Charles Koch’s interest in reform a product of his deep conviction against what he sees as government overreach? Is it a Trojan horse meant to bring changes to the law that would protect his own businesses from criminal prosecution? Or is it simply part of a public relations campaign to convince the public that the Koch brothers aren’t the evil geniuses they are sometimes made out to be?
Two pieces published this week attempt to answer those questions. The first is an interview with Koch Industries senior vice president Mark Holden by Bill Keller of The Marshall Project. Holden makes the case that Koch believes in reform for the usual reasons: poor people are often screwed over by the courts; the war on drugs is overly punitive; prisons are overpopulated; overpopulated prisons are a financial burden on taxpayers.
Keller challenges him on some specifics—such as Koch’s championing of so-called mens rea reforms, which chiefly benefit corporate offenders—but if you were to read Holden’s statements without any prior context, you might come away with the mistaken impression that the Kochs are primarily known as bleeding hearts. When Keller asks his first question—what does Holden consider broken about today’s justice system?—he begins his answer by calling attention to the mistreatment of those less fortunate than his employer.
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.
Those are all valid and necessary points. However, much of the Kochs’ reform energy has been focused on protecting those at the top of the two-tier system outlined by Holden, not the bottom. Holden freely admits that Charles Koch became interested in criminal justice after his company was accused of covering up its emissions of benzene, a carcinogen, at a refinery in Texas in the 1990s. (“The Corpus Christi case was a grave miscarriage of justice. There was no cover up,” Holden tells Keller.) A billion-dollar conglomerate running afoul of the U.S. Justice Department for literally poisoning the air is hardly the kind of David-and-Goliath story set up at the beginning of the interview.
The Koch fortune has also gone toward supporting indigent defense, a worthy cause and one that lines up nicely with the idea that the family is out to protect the little guy. Jane Mayer, a veteran Koch reporter and reliable skeptic of the company line, points out that it has only been giving money to public defenders so since 2014—the same year Koch Industries began spending millions of dollars on the advertising and public relations blitz that is largely responsible for the softening of its public image. In a piece published in the New Yorker this week, Mayer makes the case that the Koch family’s motives in straightening out the justice system aren’t exactly altruistic.
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. As Holden puts it, “The criminal-justice system is a big-government program that has failed miserably.”
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.” In 2011, his organization awarded Mark Holden its Defender of Justice Leadership Award, in recognition of his and Koch Industries’ “vision and courage.” But 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.
Mayer also notes that Koch Industries was recently embroiled in another environmental scandal—this time for depositing multistory piles of a refinery byproduct called petroleum coke near impoverished areas in Detroit and Chicago, where residents complained that black dust was blowing off the piles and covering their neighborhoods. A public-health advocate told Mother Jones that the dust is linked to asthma and heart attacks. The Koch subsidiary that was responsible for the piles maintained that they were harmless, and once threatened to sue the city of Chicago over its pet-coke regulations. Finally, last year, it relented and agreed to remove the piles.
Charles Koch has the track record of a philanthropist who is genuinely invested in seeing fewer people in jail, wealthy oil barons and inner-city pot dealers alike. But his investment is likely driven by an ideological commitment to small government, not grave concern for the souls of the poorest among us. When the state is sending impoverished people to jail, Koch is happy to intervene on their behalf. When Koch Industries is sending them to the hospital, his support falters.