This interview was published in partnership with The Marshall Project, a nonprofit news organization that covers the U.S. criminal justice system. Bill Keller is The Marshall Project’s editor-in-chief.
One of the more improbable mixed marriages of the past year or so joined the billionaire Koch brothers, Charles and David, powerhouse bankrollers of right-wing candidates and causes, with the ACLU and other champions of liberal values in an alliance to push for reforms of the criminal justice system.
Charles is the brother with the passion for this subject, and Mark V. Holden, senior vice president and general counsel of Koch Industries Inc., is the man who speaks for him. The Marshall Project’s Bill Keller, engaged Holden in a correspondence on the Koch doctrine of criminal justice. The transcript has been edited for length and clarity.
The Marshall Project: Let me start with a big, broad question. Critics across the ideological spectrum say the criminal justice system is “broken.” But they don’t always mean the same thing. What do you see as fundamentally wrong with the way the system works today?
Mark Holden: 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.
Another fundamental problem is that since the start of the War on Drugs, there has been a dramatic shift in the balance of power in our system away from judges to prosecutors. For instance, we aren’t sure how many federal criminal laws there are, but estimates are that there are somewhere between 4,500 and 6,000. Given this explosion in the number of statutory crimes, the advent of mandatory minimum sentences, and the prosecutor’s control of the grand jury process, prosecutors now have too much power and have, in many instances, become prosecutor, judge, jury, and executioner.
We also need to fix our indigent defense programs so that the promise of Gideon v. Wainwright and the 6th Amendment right to counsel are a reality for all defendants whenever they are charged with a crime that could lead to loss of liberty, including misdemeanors.
In addition, we need to allow judges to make determinations based on the facts of the crime and the individual before them to ensure that the punishment fits the crime. We should reject the labels “soft on crime” and “tough on crime,” and instead be smart on crime and soft on taxpayers.
For those who are incarcerated, especially non-violent offenders, the prison experience should be about reform, rehabilitation, and redemption rather than revenge, reprisal, and retribution.
And finally, we need to reform how we allow individuals to reenter society after serving their sentences. Currently, there are tens of thousands of government-imposed restrictions on ex-offenders that limit their ability to get a meaningful job, housing, student or business loans, credit cards, and vote. We make it difficult for people to turn their lives around once they have a brush with the law. This creates hardships for the ex-offenders and their families, and leads to the increased human and societal costs of recidivism and reincarceration.
The Marshall Project: What principles should govern reform of the system?
Holden: We should be guided by the Bill of Rights, first and foremost. Four of the ten amendments in the Bill of Rights deal with criminal justice issues – the 4th, 5th, 6th, and 8th Amendments. Our Founders were sending us a message that the greatest threat to liberty would come through the criminal justice system. It should be a very high bar before the government can take away someone’s life, liberty, property, and pursuit of happiness.
We also need to recognize that everyone is worthy of and capable of redemption. With 97% of those who are imprisoned reentering society at some point, it is in all our interests to ensure that offenders are provided training and programs while in prison that make them better people coming out than when they went into prison.
In the United States, the poorest and the least educated among us make up the vast majority of those who are imprisoned. That was true back in the 1980s when I worked in a prison during my college days in Worcester, Massachusetts, and it remains true today.
We should make sure that we have quality education programs in impoverished communities and that there are real employment opportunities in these communities. Many of the issues that end up being handled through the criminal justice system could potentially be avoided if there were educational and vocational opportunities in all of our neighborhoods and communities.
The Marshall Project: My first reaction to these initial answers was, I could imagine Bernie Sanders incorporating much of this language into a campaign speech. My second was, this does not sound like a way to cut government spending; by the time you’ve paid for adequate indigent defense, treated the drug addicts you’ve spared from incarceration, and provided quality education to the poorest communities, haven’t you consumed all the money you saved by shrinking prison populations – and then some? How does that square with Mr. Koch’s politics, which, as I understand them, rest on a bedrock belief in less government?
Holden: I have not heard Senator Sanders lay out a comprehensive approach to criminal justice reform similar to what we at Koch have been discussing. As we all know, the issues that need to be addressed in our system were created in a bipartisan manner. In fact, when Mr. Sanders was in the House of Representatives, he voted in favor of the 1994 Omnibus Crime Bill that led to many of the over- criminalization and over-incarceration issues that now need to be addressed.
You are correct that Koch favors less government intrusion into people’s lives, particularly at the central federal government level. Our point of view on criminal justice reform is completely consistent with Charles Koch’s classical liberal views of limited government and expansive individual liberty.
We need to downsize the criminal justice system because, among other reasons, it is a prime example of a ruinous failed big government program that has wasted trillions of dollars and ruined untold lives over the past 30-plus years. Left, center, and right all agree on this, and it is the rare example where even the left doesn’t think that the solution to a failed big government program is more government.
We believe that if changes to the criminal justice system are made consistent with the principles laid out in my prior response, billions of dollars wasted on incarceration and other aspects of the system would be saved and it could free millions of people from poverty.
Indeed, a Villanova University study concluded that “had mass incarceration not occurred, poverty would have decreased by more than 20 percent, or about 2.8 percentage points” and “several million fewer people would have been in poverty in recent years.”
The Marshall Project: You’re right that Senator Sanders has not (at least not yet) offered a comprehensive plan on criminal justice. I meant that he would be very comfortable with your general theme, that we have one justice system for the rich, and another, far shabbier one for those less well off.
I’ll come back to the politics of this later, but two quick points of clarification. First, I know that Charles Koch prefers that term “classical liberal” to the terms often applied to him, “libertarian” or “conservative” (sometimes with a prefix like “arch-“). Perhaps you can briefly explain the difference. And where else, besides incarceration itself, would you like to see the government cut spending on the criminal justice system? Police? Courts? The Department of Justice?
Holden: As Charles Koch has explained, “A classical liberal is someone who wants a society that maximizes peace, stability, tolerance and well-being for everyone. One that opens opportunities for everyone to advance themselves, that opens it to innovations that improves people’s lives and a society in which people succeed by helping others improve their lives. And that’s what I’m working for.”
In contrast, the term “libertarian” can have many different meanings and interpretations, including those who believe in no government, no national defense, and/or extreme individualism above all else and at the expense of others. Thus, Charles does not consider himself a libertarian, but a classical liberal.
With regard to where else spending can be cut, we believe the entire criminal justice system has unprofitable spending and waste associated with it. For example, law enforcement should be allowed to focus on dangerous offenders, rather than focusing heavily on low level alleged offenders, drug addicts, and people with mental health issues. If this were to occur, it would reduce spending and waste in the entire justice system – from arrest, pretrial, trial, incarceration, and reentry – because there would be fewer offenders in the system.
The Marshall Project: Can you give me some examples of criminal offenses that you think should be handled with civil or regulatory penalties?
Holden: If you haven’t already done so, you may want to check out @CrimeADay on Twitter, which offers numerous examples of criminal offenses and penalties that should probably be handled with civil penalties and should not even be crimes in the first place. Because the human, societal, and fiscal costs of a criminal record are so dramatic (felony or misdemeanor), we believe that criminal law and criminal punishment should be reserved for behavior that poses a threat to safety and security.
Generally speaking, we believe that the criminal law should focus on activities that involve violence, fraud, theft, and/or intentional destruction of property. And we should strive to use the least amount of force necessary to bring about compliance by the individual.
To read the rest of this interview, go to The Marshall Project.
This interview was published in partnership with The Marshall Project, a nonprofit news organization that covers the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.