Koch’s Justice Reform Proposal Restricts Prosecution For Environmental Violations

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Corporate crime

Equality has never really caught on in America regardless the concept is ensconced in the nation’s Declaration of Independence and Constitution. One area that has come under increasing scrutiny over the past couple of years is the inordinate number of poor and people of color who are incarcerated at an incredibly higher rate than the rest of the population. In part, it is due to America’s inherent racism, and in part because there is big money and serious profit-taking in the nation’s penal system.

Now though, an unlikely alliance between the Koch brothers, the White House, Democrats, and the Kochs’ activist network; the latter who have portrayed themselves as altruistic benefactors of the imprisoned by promoting major criminal justice reform “to unshackle millions of poor and people of color from a predatory legal system.” However, like everything connected with the Kochs, there is an ulterior motive behind their activism driven by a new and effective means of skirting environmental regulations with impunity under the guise of “criminal justice system reform.”

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Neither the Koch brothers, ALEC, nor House Republicans are concerned about reforming the criminal justice system to relieve people of color or the poor from judicial inequality. They want the system reformed for corporations, the wealthy, and the Koch brothers. Like every piece of legislation, or “reform package” involving Koch-Republicans, there are hidden provisions to ensure that the Kochs and corporations get precisely what they demand; impossible “legal hurdles” to prevent federal prosecutors from pursuing white-collar criminals.

Apparently the Kochs have concluded that since they have been unsuccessful thus far in their significant attempts to eliminate federal regulations and laws, especially environmental regulations, they tasked “their Republican Congress” with passing legislation to neuter the judicial system’s ability to prosecute violators.

There is nothing whatsoever altruistic about the Koch’s alleged pursuit of fairness or justice in promoting criminal justice reform. It is just a “get out of jail free” card courtesy of Republicans and no small number of naïve Democrats motivated out of compassion to put a stop to judicial inequality. Time will tell if Democrats or the President can eliminate the Koch-corporate amendments hampering prosecution for serious crimes against the American people.

A House Judiciary Committee’s early draft of one proposed package of reforms substantially raises the legal threshold for prosecutors to prove a person committed a white-collar offense. The House bill will abandon a very basic precept in American law that no person can claim they did not know, or understand, that what they were doing was illegal or dangerous. If the legislation is enacted, it will require that the government “proves that the defendant knew, or had reason to believe, the conduct was unlawful;” in other words, prosecutors would be required to prove they could read a defendant’s mind at the time of their crime.

According to the president of Public Citizen, Robert Weissman:

The House language violates the basic precept that ‘ignorance of the law’ is no defense. There is absolutely no reason for the otherwise laudable criminal justice reform bill to contain any measure to weaken already feeble standards for corporate criminal prosecution.”

Of course there is no reason in a democracy to create a different set of legal standards for the rich and corporations than the rest of the population, but America is hardly an equitable society. But it is noteworthy that the Kochs directed Republicans to slip “fine print” protecting corporations into judicial reform heavily touted to protect the poor and people of color.

Some Americans may be aware that the Koch’s state-level legislative arm, the American Legislative Exchange Council (ALEC) has spent no small amount of Koch, NRA, and Chamber of Commerce funds working on “criminal justice reform” in the states, but this latest push at the federal level is aimed directly at environmental regulations. In fact, nearly all Koch-funded, anti-regulation belief tanks have been extremely active issuing documentation and papers demanding that since Republicans control Congress and cannot abolish regulations outright, the next best thing is enacting more robust requirements to even prosecute violations, much less get a white-collar (corporate) conviction.

A spokesman for the U.S. Department of Justice, Peter Carr, said if the Koch criminal justice reform ever becomes law that it will seriously undermine the DOJ’s ability to prosecute white-collar crime. Mr. Carr said,

It would create confusion and needless litigation, and significantly weaken countless federal statutes; especially those that play an important role in protecting the public welfare… protecting consumers from unsafe food and medicine;” it would also be the next best thing to eradicating federal regulations. It is precisely what the Heritage Foundation and Charles Koch Institute have clamored for and Congress is seriously on pace to give the Kochs what they expect for their money; results.

The Koch brothers and their conservative allies claim that federal prosecutors have far too much power and too readily abuse it; it is what normal people regard as doing their jobs. This has nothing to do with a racial justice agenda or anything close to civil rights activists focused on police and prosecutorial abuses of the criminal justice system; this is entirely about the Koch-corporate community focusing on neutering government regulations.

Heritage Foundation’s legal studies director, John Malcolm, wrote that

If somebody or some entity unwittingly does something that results in harm to the environment or public, there is no reason why it cannot be dealt with through the administrative or civil justice systems. This would avoid saddling blameless individuals and entities with a criminal conviction.”

It would also allow the Kochs to pollute, dump toxic chemicals, and destroy air and water with relative impunity by simply claiming they were unaware that it was a federal violation to poison the air and water.

Malcolm even devised a paper for Congress to base its “regulatory reform laws” on and laid out some excuses corporations can use to get out of jail free. Specifically, Malcolm’s provides a range of varying standards of proof federal prosecutors will be bound by law to get a conviction. At worst, a perpetrator can be prosecuted if they are accused of “negligence, recklessly, knowingly, intentionally, and willfully violate regulations or the law;” or they can plead that they just did not think it was illegal to dump toxic waste and poison into the air and water and force the Department of Justice to prove they were not ignorant of the law. It is something a person of color caught with a reefer in their pocket could never get away with. Obviously, the only point of the “reformation” is to protect corporations and give them free rein to violate federal regulations by making it impossible to prosecute them.

The principle behind criminal justice reform is admirable, and changing the system to treat the poor and people of color equitably is desperately needed. It is likely that the majority of Democrats, including President Obama, will push hard to see some kind of reform package passed sooner than later. However, no American should delude themselves for one second that the Kochs, who are praising themselves for acting on behalf of the poor or minorities, are spending one cent of their substantial fortune for any other reason than to protect themselves from prosecution for violating environmental regulations they have failed to eradicate.