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Testimony - Adequacy of Criminal Intent Standards in Federal Prosecutions, CMD, 2016

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Written Testimony of
Lisa Graves and Brendan Fischer
The Center for Media and Democracy
Before the United States Senate Committee on the Judiciary on
“The Adequacy of Criminal Intent Standards in Federal Prosecutions”
January 20, 2016
Mr. Chairman Grassley, Ranking Member Leahy, and Members of the Committee:
Thank you for the opportunity to submit this testimony regarding the importance of not changing
federal laws to make it harder to prosecute serious financial and environmental crimes that
harm the well-being of Americans from all walks of life.
This statement is being submitted by Lisa Graves and Brendan Fischer, who serve as the
Executive Director and General Counsel, respectively, of the Center for Media and Democracy.
CMD is a national media group that investigates the undue influence of corporations on our
democracy. For more than 20 years, CMD’s watchdog investigations have exposed corporate
spin and deception about products, practices, or policies that threaten the health, safety, or
security of American families. CMD publishes PRWatch.org, ALECexposed.org, and
SourceWatch.org, and its research is regularly cited in documentaries and by major newspapers
and news magazines.
CMD applauds this Committee for its efforts to begin the reform of America’s criminal justice
laws, policies that have helped make the United States the world's biggest jailer and whose
burdens have fallen disproportionately on people of color.
However, we have deep concerns about the push to exploit this crisis to impose a new default
intent requirement, particularly for so-called “white collar” crimes. Enacting a default mens rea
requirement for most criminal laws would do little to address the mass incarceration crisis, but
would make it harder to prosecute corporate violations of environmental and financial laws that
try to protect the public from the mass effects of corporate wrongdoing.
Most Americans believe, for example, that more corporations and executives should have been
prosecuted following the 2008 Wall Street crash, not fewer. Congress should not make it harder,
for example, to prosecute executives whose actions harm our economy, destroy Americans’
pensions, or poison our water or air in violation of federal statutes.
In particular, we wish to provide the Committee with important background about one of the
driving forces behind the call for mens rea reform—namely, Koch Industries, the Wichita-based
company led by David and Charles Koch that claims annual revenues of more than $115 billion.
Koch Industries and other big energy conglomerates could benefit from increasing the intent
standard in federal criminal laws—to the detriment of the interests of millions of American
families who live near their industrial operations

	
  

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No one should be above the law, but some of the intent proposals would effectively do just that,
to the benefit of corporations and CEOs who could be held responsible for wrongdoing under
current laws.
For at least the past five years, the Kochs and Koch-backed groups like the American
Legislative Exchange Council (ALEC) have been pushing to create a stringent "intent" standard
for criminal violations, particularly for so-called corporate crime and executive suite criminals.
This under-reported aspect of the Koch criminal justice reform agenda could potentially reap big
benefits for Koch Industries and other big corporations.
Although it may appear that there are a myriad of voices from different groups clamoring for
changes to mens rea, in fact almost all of them have one thing in common: Koch funding. In
some ways, the echo chamber pressure to add this issue to the criminal justice reform
movement serves to illustrate the power and illusion that Koch money and power over public
policy has helped fuel.
New "Intent" Requirement Would Block Many Corporate Criminal Prosecutions
As you know, legislation to make the criminal justice system fairer passed the U.S. Senate with
bipartisan support this winter. As the U.S. House of Representatives has taken up the matter,
the bipartisan consensus has begun to fray with a controversial proposal traced to the Kochs.
A bill that passed the U.S. House Judiciary Committee in November, sponsored by Rep. Jim
Sensenbrenner (R-WI), doesn't address mass incarceration, one of the primary concerns that
many have been raising for years. His bill would instead overhaul numerous federal criminal
laws by requiring prosecutors to prove that a person or corporation "knowingly" engaged in
illegal conduct and additionally "knew" or should have known that the conduct violated the law.
That bill's default criminal intent standard is strikingly similar to the ALEC "Criminal Intent
Protection Act," and tracks policies promoted by Koch-backed organizations for the past five
years.1 Koch Industries is a major funder and leader of ALEC. The billionaire Koch brothers
have underwritten ALEC through foundations they control and organizations they fund.
Many criminal laws have an "intent" requirement that can affect the length of the sentence
imposed, as with the different degrees of guilt assessed for killing another.
But for a number of white collar crimes—such as environmental violations and financial crimes
under the Dodd-Frank financial reform law—federal law does not require that prosecutors prove
that a company or its leaders had specific intent to pollute our waterways or crash the economy.
Instead, the harms caused by extensive pollution, for example, can be enough to hold a
corporation and its leaders criminally liable under certain circumstances.
Sophisticated corporations are expected to know their legal obligations, particularly when
engaging in activities that pose a danger to the health and well being of the public at large.
It is not unreasonable to expect they be aware of laws that regulate their industry, and it is not
unreasonable to punish them for violating those laws, through both civil and criminal penalties.

	
  

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What’s more, proving corporate “intent”--or an executive’s mixed motives, such as maximizing
profits or cutting costs versus harming workers, investors, or neighbors--can be difficult in a
complex corporate structure, with varying layers of hierarchy and lines of authority.
Corporate decisions rationalized in the name of cost-cutting or efficiency can lead to
tragedies like the Upper Big Branch Mine disaster, which killed 29 workers, even in the absence
of malicious intent to kill the miners and violate safety laws.2 That case recently resulted in a
rare criminal conviction for the former CEO of Massey Energy.3
“Requiring that prosecutors prove that a corporate executive is both consciously aware of the
conduct of their subordinates and consciously aware that the conduct of those subordinates
violates criminal law is very, very difficult," said Frank O. Bowman, a law professor at the
University of Missouri.
"This would make [white collar] prosecutions more difficult than they now are, and they are
already hard," Bowman said.
Additionally, evidence CMD has reviewed indicates that the Koch-backed push to impose a
default “intent” requirement on federal criminal laws is less about genuinely reforming the
manifest crisis in the criminal justice system, which is mass incarceration, and more about
undermining crucial regulations that protect the public’s interests.
Overcriminalization vs. Mass Incarceration
Although civil rights activists have been focused on mass incarceration—such as changing the
mandatory minimum sentences enacted during the drug war that have disproportionately
affected people of color, policies that scholars like Michelle Alexander have described as a "new
Jim Crow"—the Kochs, ALEC, and other Koch-backed groups have been largely focused on
overcriminalization.
Despite how it sounds, overcriminalization isn't focused on the disproportionate rate of
incarceration of people of color. It is instead focused on the idea that there are too many
crimes—and, more specifically, too many white-collar crimes that might affect corporate
interests.
"All of the attention here is on whether this will only benefit quote-unquote white-collar criminals,
people at financial institutions, people at firms that are damaging the environment," Jeffery
Robinson, deputy legal director of the ACLU, said about Rep. Sensenbrenner’s bill.
"If it only benefits those people, then I haven't seen any evidence that there is any overincarceration among that group. In fact, we see very few prosecutions of such individuals."4
That is, corporations and their leaders are not often prosecuted and convicted in our federal
courts. Many Americans have expressed deep disgust that more corporations and bankers were
not prosecuted following the gambling on Wall Street that led to the economic crash in 2008, for
example, unlike the nearly 1,000 prosecutions following the Savings & Loan crisis.
"To a considerable extent, deferred prosecutions—in which the Justice Department agrees not
to prosecute in exchange for a promise by corporate defendants not to violate the law in the
future—have replaced actual prosecutions, undermining any kind of deterrent effect" for criminal

	
  

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penalties, said Public Citizen president Rob Weissman. Deferred prosecutions are almost
unheard of outside of the white-collar crime context.
Indeed, as investigative reporter Jane Mayer recently documented in The New Yorker, Koch
funding for criminal justice reform has largely focused on white-collar crime, which nets only a
handful of prosecutions each year, as opposed to the drug crimes and sentencing policies that
affect the overwhelming majority of criminal defendants.5
Some have expressed general concern that there are too many federal offenses with criminal
penalties and too many that don't specify an intent standard, an issue that is being studied in
the Senate bill that passed, as you know.
However, the Koch-backed "solution" to overcriminalization—the blanket imposition of a strict
intent standard on every federal crime, as opposed to less-stringent "negligence" or
"recklessness" standards—would undermine the few corporate criminal prosecutions that do
take place.
For example, the U.S. Department of Justice has noted that—if a default “intent” requirement
had been enacted—it could not have secured a guilty plea in last year's case against Jensen
Farms, whose failure to follow food safety standards with its cantaloupe led to a listeria outbreak
that killed 33 people.6
Imposing a default intent requirement could affect prosecutions for violations of laws like:
•
•
•
•
•

the Clean Water Act;
the Clean Air Act;
the Endangered Species Act;
the Resource Recovery and Compensation Act (RCRA);
and many other laws intended to protect the public’s interests.

Changing from a general intent requirement of knowingly to willingly, in cases of killing
endangered species for example, would create an additional hurdle to prosecution despite the
harm done. Moreover, any effort to eliminate criminal negligence in favor of a stricter standard in
these or other statutes would also put the public at greater risk of harm—an unwarranted result.
Such changes could also make it more difficult to prosecute the benefactor of the criminal intent
reform effort, Koch Industries, if it again contaminates the communities where it operates with
huge quantities of cancer-causing chemicals.
As Forbes noted, in 2000, "A federal grand jury indicted the privately held company and four of
its employees in September on 97 related charges for alleged violations that took place at the
company's refinery in Corpus Christi, Tex."7 Koch Industries was facing "criminal charges, in
which the petroleum giant is accused of spewing the toxic chemical benzene into the
environment in 1995 and then trying to hide it from government investigators."8
Koch and its employees may not have intended to "leak" 91 metric tons of toxic benzene into
the air and water around their refinery but their failure to install key protections and fully monitor
their emissions resulted in their refinery loading 15 times the legal limit of the toxic substance
into the environment.

	
  

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That is, Koch Industries exposed nearby residents to massive amounts of benzene, which "is a
well-established cause of cancer in humans."9 It is a "group 1" carcinogen because studies have
documented that it causes acute myeloid leukemia in humans, and it may also cause
lymphocyte leukemia, non-Hodgkin's lymphoma, and multiple myeloma. It can also result in
reduced production of bone marrow and suppress T-cells, which makes people more vulnerable
to infections. It has also been found to lead to chromosomal aberrations and can reduce birth
weight and cause other health problems.
But as Koch Industries’ team of lawyers fought the charges, the 2000 presidential election was
underway. David Koch was one of the top 30 donors to George W. Bush and the Republican
Party, contributing $378,500 directly.10 (They also may have funded soft money operations
resembling the Triad group that was tied to the Kochs by a whistleblower whose account of
Koch funding was confirmed after the conclusion of a 1997 SJC investigation, as CMD
has documented).11
After Bush became president and former Senator John Ashcroft was appointed Attorney
General, the administration reduced the charges--which could have led to fines of more than
$500 million--and dropped it to just one count for a Koch Industries subsidiary, Koch Petroleum
Group. Despite the drastic reduction it was still a record fine for environmental law violations.
"Under the plea agreement, Koch will pay a total of $20 million dollars: $10 million in criminal
fines and $10 million for special projects to improve the environment in Corpus Christi—a record
amount imposed in an environmental prosecution," the DOJ stated at the time.12
It is this experience—prosecution of their corporation and a subsidiary for the massive emission
of a known carcinogen—that the Kochs say sparked their interest in criminal justice reform.
And the Koch reform efforts could help prevent such prosecutions from ever occurring again.
“By their own admission, they became interested because they were prosecuted in Corpus
Christi,” David Uhlmann, who headed the justice department’s environmental crime department
and prosecuted Koch Industries, recently told The New Yorker ‘s Jane Mayer.
“The Koch brothers are not interested in criminal-justice reform because they suddenly became
interested in the number of poor and minority Americans who are in prison,” he said.
“They and their allies want to take us back to 1970, before the regulatory state,” said Uhlmann,
who is now a law professor at the University of Michigan.
In addition to the Corpus Christi prosecution, Koch Industries has been investigated for many
potential violations of federal and state laws, some of which resulted in settlements.13
Overcriminalization: Liberty, and More, At Risk for Corporations and Their Employees
At times, the Kochs have been clear about the connection between overcriminalization, a mens
rea intent requirement, and their corporate interests.
In September 2011, Koch Industries' Associate General Counsel, Marsha Rabiteau, gave a
presentation titled "Overcriminalization: Liberty, and More, At Risk for Corporations and Their
Employees" for example.14 She had given a nearly identical presentation two years earlier, titled
then "Mens rea and other Criminal Law Fundamentals on the Tines of the Public Pitchfork."15

	
  

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That presentation, to the Federation of Defense and Corporate Counsel, claimed: "The life of
the corporation, the liberty interests of corporate officers and other employees can be in the
cross-hairs of criminal prosecution over matters that often do not rise to true criminal activity."
The solution to the overcriminalization problem, Rabiteau said, was to create a default mens
rea requirement, as would later appear in the Sensenbrenner bill and in ALEC model legislation.
Rabiteau suggested that attendees visit the Koch-backed Heritage Foundation's
"Overcriminalization" project and cited a report from Heritage and another Koch-backed group,
the National Association of Criminal Defense Lawyers, called "Without Intent: How Congress Is
Eroding the Criminal Intent Requirement in Federal Law."
(Rabiteau also suggested that corporations, as a legal fiction, could not form the requisite
"intent" to be held liable for a criminal act—although corporations and Koch groups have
supported the creation of a right to corporate "free speech" in the form of spending unlimited
amounts in elections as with the divisive and widely discredited Citizens United decision.)
She argued that reforming corporate criminal justice law is needed "so that wrongdoers are
punished with laws that are clear and adhere to our Anglo-American heritage."
Dodd-Frank Wall Street Reform Compromise, "Without Intent"
The Koch funding for criminal justice reform efforts appeared to ramp-up as the federal
government began taking steps to reign in financial institutions after the collapse of Wall Street.
As the Dodd-Frank financial reform bill was being debated in 2010, two Koch-backed groups,
the National Association for Criminal Defense Lawyers (NACDL) and the Heritage Foundation,
issued a comprehensive joint report/project named "Without Intent," criticizing what they called
overcriminalization and the lack of universal intent requirements in the federal criminal code.16
The co-author of NACDL's "Without Intent" report, which has been repeatedly cited in Congress'
debate on criminal justice reform, is now a counsel for the House Judiciary Crime
Subcommittee, which is chaired by Rep. Sensenbrenner (R-WI).
NACDL urged Congress to strike criminal provisions of Dodd-Frank that did not include an intent
requirement, but Congress rejected that lobbying. When the law passed later that year,
NACDL criticized the bill on these grounds:
"[T]he overwhelming majority of the criminal offenses contained in the bill lack adequate mens
rea, or criminal intent, requirements and, consequently, will fail to protect innocent or inadvertent
actors from being criminally prosecuted or punished."17
Why would the Kochs be concerned about Dodd-Frank and financial regulation? Because a big
part of their multi-billion-dollar business comes from oil speculation. The Kochs have long been
deeply involved in global financial markets, especially energy and commodity trading.18
The Kochs are credited with creating the first oil derivatives in 1986. And they worked with U.S.
Senator Phil Gramm (R-Tex.) to deregulate energy speculation with credit default swaps in 2000
with a measure that was later dubbed the "Enron loophole" after it aided the catastrophic
collapse of the Texas energy giant.19

	
  

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By 2009, a Koch executive boasted that the firm was one of the top five oil speculators in the
world, with offices in London, Geneva, Singapore, Houston, New York, Wichita, Rotterdam, and
Mumbai.20
According to the Center for Public Integrity, the Kochs and their lobbyists "worked to favorably
shape the [Dodd-Frank] bill, and have not stopped working since it was passed."21
Key aspects of the 2010 Dodd-Frank Wall Street reform bill attempted to bring transparency and
stability to the $600 trillion "over-the-counter" derivatives market by dragging trades into the light
of day, requiring supervision by a clearing houses, creating position limits for key commodities
and requiring capital and margin requirements. Dodd-Frank also created some new criminal
penalties, which were the focus of NACDL's objections.
White-Collar Criminal Defense
The Kochs have received good press in recent months for acknowledging that they help fund
NACDL.22 However, Koch funding for NACDL has gone overwhelmingly to support the white
collar criminal defense project that NACDL launched with Koch funding in 2004.
The white collar section of NACDL is designed to reshape the law to assist corporate executives
and address overcriminalization, rather than supporting underpaid public defenders.23
Almost the entirety of the Kochs’ funding for NACDL over ten years has gone toward white
collar criminal defense; it was not until 2014, after the Kochs launched a public relations
offensive to reshape their public image, that they provided any meaningful support directly for
NACDL’s indigent defense projects, according to one account.24 (And even that grant was less
than a tenth of what Koch Industries spent on its corporate image ads that year, The New
Yorker’s Mayer noted.)
Koch has actively encouraged white collar defense lawyers to support NACDL: in Rabiteau’s
presentations to the Federation of Defense and Corporate Counsel, for example, the Koch
Associate General Counsel urged others to "Join the Corporate Advisory Council to the National
Association of Criminal Defense Lawyers White Collar Crime project." NACDL has also hosted
Koch Fellows at its DC office.
And NACDL has been particularly focused on the mens rea issue in recent years, as the Kochs
have ramped up their funding of criminal justice reform.
For example, the current Director of NACDL's White Collar Crime Project has testified on
Capitol Hill in favor of an intent requirement for white-collar crimes. She has also co-authored
op-eds with the Heritage Foundation favoring intent laws.25 And she addressed ALEC's criminal
justice task force—apparently the only time that NACDL presented to that task force—about this
very issue, criminal intent.
NACDL: FCPA Amounts to “Overcriminalization”
In 2011, NACDL testified before the U.S. House Judiciary Committee in favor of reforming
another white collar crime law, the 1977 Foreign Corrupt Practices Act (FCPA), which prohibits
U.S. corporations from bribing foreign public officials.26 NACDL’s white collar rep then claimed
that "the FCPA is emblematic of the serious problem of overcriminalization," and called for
Congress to "strengthen the mens rea requirements of the statute."

	
  

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FCPA experts criticized her call for adding an intent standard, describing it as a means of
undermining the anti-bribery statute's enforcement and reducing incentives for companies to
take affirmative steps to halt bribery.27
At the hearing, Rep. John Conyers (D-MI) pressed NACDL on how the FCPA could amount to
"overcriminalization" when the Justice Department prosecutes an average of 14 cases per
year.28 She replied simply that "a statute with no reasonable limitations is overcriminalization."
Notably, at the same time that NACDL was testifying in favor of reforming the federal antiforeign-bribery statute on "overcriminalization" grounds, Koch Industries was embroiled in a
bribery scandal in France.29
Prior to the Kochs' public PR push on criminal justice this past year, few people outside of
NACDL knew that it was funded by Koch money. The Koch role in funding NACDL as it
advanced the Koch agenda on criminal intent changes did not come up during the hearing
about those proposals.
The ALEC-SPN "Overcriminalization" Push
The year Dodd-Frank became law, in 2010, the Texas Public Policy Foundation (TPPF) formed
its "Right On Crime" project to make a conservative push for criminal justice reform, with
"overcriminalization" one of its priority issues.30 TPPF is one of the "think tanks" that is part of
ALEC and a sibling of ALEC, the State Policy Network (SPN), which has also been funded by
Koch money and other funding vehicles used by the Koch network of billionaires.31
Thanks to an accidental disclosure of TPPF's donor list, the Texas Observer reported that Koch
Industries directly funded TPPF to the tune of $160,000 that year, as did the Kochs' Claude R.
Lambe Foundation, which gave $70,000.32 Funding from Koch Industries or the Kochs
themselves is not publicly reported so it is not known whether Koch Industries or the Kochs
funded TPPF in prior or subsequent years.
When the "Right On Crime" launched its website on this project in early 2011, the group made
clear that a major focus was expressly "Overcriminalization," which it described on the front
page of its website as "The Criminal Prosecution of Corporations."33
Right on Crime's first post on overcriminalization warned that "criminal prosecution of
corporations has gotten out of hand" and decried the prosecution of Arthur Andersen in the
Enron case.34
The "conservative solution" to overcriminalization, Right on Crime stated, was to "Stop creating
new criminal offenses as a method of regulating business activities. Regulation is better handled
through fines and market forces, not the heavy stigma of criminal sanctions."35
The Koch-backed ALEC soon jumped on the "overcriminalization" bandwagon. ALEC,
which bragged in the 1990s that it successfully spread "three strikes you're out" and "truth in
sentencing" bills that helped increase the number of prisoners and the length of time served in
prison for a variety of crimes, was now decrying the lack of a mens rea requirement for white
collar crimes.36
For years, ALEC not only pushed for bills that increased the prison population but it also pushed
numerous measures to privatize prisons, which benefited its corporate funders like Corrections

	
  

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Corporation of America (CCA).37 As part of its pay-to-play operations, when Walmart started
funding ALEC, ALEC also pushed bills to create mandatory minimum sentences for
shoplifting, enacted new penalties for retail theft, and even added sentencing enhancers for
using an emergency exit when shoplifting.38
But, in April 2011, ALEC held a presentation called "Overcriminalization: Not a Fair Fight: The
Perils of Vague Criminal Statutes," featuring NACDL. ALEC's agenda stated that "This
presentation will discuss the proliferation of criminal law which has produced scores of criminal
offenses that lack adequate ‘mens rea’ criminal intent requirements. This discussion will provide
legislators solutions to this attack on individual liberty and economic growth in their state."39
A few months later, ALEC adopted the Criminal Intent Protection Act as a "model" bill for
states.40 This bill—like Rep. Sensenbrenner's federal proposal—would impose a strict criminal
intent requirement for any state criminal offense that doesn't specify otherwise.
Early the following year, in January of 2012, ALEC adopted a "Resolution on Transparency and
Accountability in Criminal Law" decrying that "the creation of new criminal penalties is often
obscured because these penalties are buried in legislation that is thousands of pages such as
the convoluted Dodd-Frank bill enacted by Congress."41
In 2013, ALEC released a report titled "Criminalizing America: How Big Government Makes a
Criminal of Every American" urging state legislators to create a default mens rea requirement,
specifically by enacting the ALEC "Criminal Intent Protection Act."42 The report itself suggested
ALEC's wanted a mens rea requirement because the corporate-backed group was concerned
about average Americans.
Yet ALEC showed its hand in a post announcing the report where it specifically noted that a
default criminal intent requirement would affect the Clean Water Act, the same law that Koch
Industries was accused of violating in 2000, claiming that:
"to convict someone of violating the Clean Water Act, a prosecutor must only show that the
accused has committed an infringement of the Act. Therefore, a person who did not know their
conduct was illegal, or whose conduct was accidental, could find themselves facing criminal
charges."43
Kochs Ride the Wave of Criminal Justice Reform and Score Positive Press
The conversation around criminal justice reform has shifted over the years. Even as crime rates
dropped, prison populations were growing and were costing states a significant amount of their
budgets. The private prison industry was pushing to add new revenue streams through
expanded detention of immigrants. After an expose by DBA Press showed the controversial SB
1070 was adopted at an ALEC conference before it was introduced in the Arizona legislature,
CCA stopped funding ALEC, and ALEC stopped pushing prison privatization on legislators.
Around that same time, states were facing substantial budget challenges following the Wall
Street crash, and "conservative" politicians were more open to concerns that had been raised
for years by progressives that many states were spending more on prisoners than on school
children. A number of religious groups had also expressed concerns that mass incarceration
was not leading to rehabilitation. And, the so-called "war on drugs" was increasingly recognized
as a failure, as a number of jurisdictions began pursuing marijuana legalization measures.

	
  

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Addressing the crisis of mass incarceration was also a key plank of many civil rights
organizations' policy platforms.
As the racial justice aspects of criminal justice reform became mainstreamed—and as the
Kochs became increasingly focused on burnishing their public image—they began to reframe
their criminal justice efforts as part of a public relations offensive, as Mayer documents in The
New Yorker.44
This effort reaped some PR benefits, in the aftermath of a mountain of negative press about the
extent of their efforts to reshape the U.S. political system.
Some in the press have even treated the Kochs as civil rights activists, despite Charles Koch
having been a member and funder of the John Birch Society (JBS) in the 1960s, even
fundraising for the JBS and helping to run a JBS bookstore in Wichita stocked with books
attacking Rev. Martin Luther King Jr. and the civil rights movement as communist, as CMD has
documented.45
The Kochs have received accolades for supporting a bipartisan coalition promoting criminal
justice reform on the federal level.
"Everything we do is designed to help people improve their lives, whether you're talking about
our business or our philanthropy," Koch General Counsel Mark Holden asserted to The
Atlantic in March 2015.46
Uhlmann, the former Justice Department official, warned that “While we need to reduce the
Draconian sentences imposed on nonviolent drug offenders, the Kochs are using criminaljustice reform as a Trojan horse for their efforts to weaken environmental, health, and safety
regulations.”
The overwhelming focus of Koch-backed groups has been on criminal justice issues that would
directly benefit Koch Industries and other corporate interests.
Meanwhile, the Kochs have been outspoken about their support for political candidates like
Scott Walker, who oppose criminal justice reforms that would help communities of color and
others affected by harsh criminal justice laws.47 Among other things, Walker pushed ALEC's
truth in sentencing into law in Wisconsin as a state legislator and ALEC member, helping make
Wisconsin the worst state in the country when it comes to racial disparities in incarceration.48
But that didn't stop Koch Industries from maxing-out on contributions to Walker's 2010
gubernatorial campaign or David Koch's Americans for Prosperity from spending $10 million
supporting Walker during the 2012 recall elections.
The Kochs have also spent significant sums helping to elect judicial candidates using
messaging that studies have shown have pushed judges to hand-down harsher sentences.49
The U.S. criminal justice system is genuinely in crisis, and for too long has devastated families
and communities. The stakes are too high to do nothing to address the crisis of mass
incarceration and key injustices caused by mandatory minimum sentences that take away
judicial discretion.
But, given the Kochs' corporate interests in changing the criminal intent requirements, and the
heavy push for such a change by groups and politicians they fund, there appears to be good

	
  

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reason for concern that Koch-backed "reform" efforts focused on adding stricter criminal intent
provisions could ultimately be an effort to allow white-collar criminals to get off the hook for
financial and environmental crimes that hurt countless Americans.
Thank you for considering our views about the adequacy of federal criminal intent standards.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
1

http://www.alec.org/model-legislation/criminal-intent-protection-act/
http://fortune.com/2015/09/30/massey-ceo-mine-explosion-coal/
http://www.nytimes.com/2015/12/04/us/donald-blankenship-massey-energy-upper-big-branch-mine.html
4
http://www.huffingtonpost.com/entry/criminal-justice-reform-koch_us_56560fb0e4b079b2818a13fe
5
http://www.newyorker.com/magazine/2016/01/25/new-koch
6
http://www.denverpost.com/breakingnews/ci_24182307/colorado-cantaloupe-farm-charged-by-federal-officials-fatal
7
http://www.forbes.com/2001/01/04/0104faces.html http://www.nytimes.com/2000/09/29/business/us-indicts-koch-industries-onpollution-violations-in-texas.html
8
Id.
9
http://www.who.int/ipcs/features/benzene.pdf
10
http://www.motherjones.com/politics/2000/10/top-50-political-donors-2000
11
http://www.prwatch.org/news/2015/11/12964/fred-thompsons-legacy-includes-giving-kochs-free-pass
12
http://www.justice.gov/archive/opa/pr/2001/April/153enrd.htm
13
http://http//www.rollingstone.com/politics/news/inside-the-koch-brothers-toxic-empire-20140924
14
Presentation outline available at http://www.prwatch.org/files/rabiteau_sept_2011_overcriminalization.pdf
15
Presentation outline available at http://www.prwatch.org/files/rabiteau_2009_overcriminalization.pdf
16
https://www.nacdl.org/withoutintent/
17
https://www.nacdl.org/criminaldefense.aspx?id=9920
18
http://thinkprogress.org/report/koch-oil-speculation/
19
http://www.nytimes.com/2008/11/17/business/17grammside.html
20
http://thinkprogress.org/economy/2011/04/13/153206/koch-industries-price-gouging/
21
http://www.publicintegrity.org/2011/04/06/3936/kochs-web-influence
22
http://www.kansas.com/news/special-reports/koch/article5050731.html
23
https://www.nacdl.org/whitecollar
24
http://www.newyorker.com/magazine/2016/01/25/new-koch
25
http://www.heritage.org/research/commentary/2010/12/you-might-be-committing-a-federal-crime
26
https://www.gpo.gov/fdsys/pkg/CHRG-112hhrg66886/html/CHRG-112hhrg66886.htm
27
http://www.stephenclaytonlaw.com/articles-and-writing/commentary-on-written-testimony-of-shana-tara-regon
28
http://www.gpo.gov/fdsys/pkg/CHRG-112hhrg66886/html/CHRG-112hhrg66886.htm
29
http://www.bloomberg.com/news/articles/2011-10-02/koch-brothers-flout-law-getting-richer-with-secret-iran-sales
30
http://www.sourcewatch.org/index.php/Texas_Public_Policy_Foundation
31
http://www.sourcewatch.org/index.php/State_Policy_Network
32
http://www.texasobserver.org/revealed-the-corporations-and-billionaires-that-fund-the-texas-public-policy-foundation/
33
Archived version from 2011 available at http://web.archive.org/web/20110116210115/http://www.rightoncrime.com/
see also http://www.prwatch.org/files/overcrminalization_prosecutionofcorporations.png
34
Archived version from 2011 available at http://web.archive.org/web/20110119172250/http://www.rightoncrime.com/2011/01/therisky-business-of-overcriminalization/
35
Archived version from 2011 available at http://web.archive.org/web/20101228034134/http://www.rightoncrime.com/priorityissues/overcriminalization/
36
1995 ALEC “scorecard” available at http://www.prwatch.org/files/alec_1995_scorecard.pdf
37
http://www.safetyandjustice.org/story/alec-house-how-corporate-bias-affects-criminal-justice-legislation
38
http://alecexposed.org/w/images/f/f7/7B4Mandatory_Sentencing_for_Repeated_Felony_Theft_From_a_Retail_Store_Act_Exposed.pdf
http://alecexposed.org/w/images/a/a5/7B7-Theft_From_Three_Separate_Mercantile_Establishments_Act_Exposed.pdf
http://alecexposed.org/w/images/d/dd/7B5-Organized_Retail_Theft_Act_Exposed.pdf
http://alecexposed.org/w/images/1/13/7B8-Theft_Using_Emergency_Exit_to_Avoid_Apprehension_or_Detection_Act_Exposed.pdf
39
http://www.commoncause.org/issues/more-democracy-reforms/alec/whistleblower-complaint/originalcomplaint/National_ALEC_Exhibit_4_PSE_2011_STFS.pdf
40
http://www.alec.org/model-legislation/criminal-intent-protection-act/
41
http://www.alec.org/model-legislation/resolution-on-transparency-and-accountability-in-criminal-law/
42
http://alec.org/docs/Criminalizing_America.pdf
43
http://www.americanlegislator.org/new-report-overcriminalization/
44
http://www.newyorker.com/magazine/2016/01/25/new-koch
45
http://www.prwatch.org/news/2014/07/12527/his-dad-charles-koch-was-bircher-new-documents
46
http://www.theatlantic.com/politics/archive/2015/03/do-the-koch-brothers-really-care-about-criminal-justice-reform/386615/
47
http://www.nytimes.com/politics/first-draft/2015/04/20/koch-brothers-signal-support-for-scott-walker/
48
http://www.prwatch.org/news/2014/06/12513/alec-scott-walker-racial-politics
49
https://www.themarshallproject.org/2014/12/11/trial-by-cash#.rrSajkg9S see also https://theintercept.com/2015/11/03/soft-oncrime-ads/
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