How the Koch brothers became criminal justice reformers

Billionaire brothers Charles and David Koch have used their fortune to back Republican candidates who support rolling back corporate regulations, slashing taxes and shrinking government.

But the tea party benefactors have another cause close to their heart, one that’s shared with many tree-hugging liberals who vilify the brothers’ politics and business practices. They want to reform the U.S. criminal justice system, which locks away a higher percentage of citizens than any other country in the world at a staggering cost.

Since 2004, the Kochs have quietly made substantial six-figure donations every year to a group representing criminal defense lawyers. The money has gone to training programs for court-appointed defenders, who predominantly represent poor and minority people who can’t afford their own lawyer, campaigns to reform the grand jury system and other causes. The Kochs haven’t attached strings to how the money must be used or sought recognition for the donations.

“They have been very, very supportive of our efforts to reform the criminal justice system,” said Norman Reimer, the executive director of the National Association of Criminal Defense Lawyers (NACDL). Reimer says he’s been able to put whatever political disagreements he may have with the Kochs aside in order to work to fix the country’s broken justice system.

The issue is one of the few in the nation’s hyperpolarized political environment that’s attracted bipartisan support, from President Barack Obama to libertarian-leaning Republican Sen. Rand Paul. (The “tough on crime” political ethos that helped triple the prison population since 1980 was also bipartisan.)

“Everybody across the ideological spectrum recognizes that the ... system is a tragedy,” Reimer said.

The Kochs’ “come to Jesus” moment on criminal justice reform came back in the 1990s, when a handful of their employees at a Corpus Christi, Texas, refinery were indicted for violating the Clean Air Act and other crimes. The charges against the employees were eventually dropped in 2001, but Koch, as a corporate entity, settled with the federal government, pleading guilty to one count of the original 97 and paying millions of dollars in fines.

While the Kochs’ critics see this incident as an example of a company rightly being punished for polluting the environment, for Charles Koch and other company officials, it was a wake-up call that the government was over-criminalizing legitimate conduct and over-prosecuting its citizens. Mark Holden, Koch Industries’ top lawyer, said he worried that such scrutiny from the government would have an insidious effect on the company’s culture.

“It took a toll on our company,” says Holden. “We saw that laws can be used to go after people and put pressure on them to turn against people.”

The powerful and wealthy Kochs realized that if they were being hit with overzealous prosecution, average citizens must have it even worse, according to Holden. “That made us look at the whole situation,” he said. “If they’re doing this to us, what’s happening elsewhere?”

The Kochs’ money has helped the NACDL to lobby Congress to change federal laws so that prosecutors have to prove intent — meaning that defendants knew they were violating the law.

Reimer says the partnership with Koch, which began in 2004, has been led by the NACDL from the beginning.

“The commitment, as far as I can see, is deep and sincere and unconditional,” Reimer said.

For now, the Kochs have no intention of turning their financial support for the NACDL into a political effort. The American Civil Liberties Union, backed with money from liberal tycoon George Soros, plans to spend at least $50 million to make criminal justice reform an issue in elections around the country, the New York Times reported last week. In theory, the Kochs could use some of their considerable political spending to back pro-reform candidates, as well.

“That’s not what’s driving what we’re doing,” Holden said of the politics of criminal justice reform. “We are focused more on the society well-being side of it here. We should all put the politics aside because that can muddle things.”