The criminal justice system is at a critical juncture. With the untimely passing of arguably one of the most influential conservative Supreme Court justices in United States history, and the potential for the next President to nominate possibly four justices to the court, the system is poised for a major shift. Couple this with the growing debate over the death penalty, mass incarceration, police brutality, and corporate criminality, among many others, and the implications become even more far-reaching.
From the bowels of social media, where racism and misogyny are not only tolerated but encouraged, to the meetings of corporate billionaires, where criminal justice legislation is bought and paid for, the debate over “justice” rages on. Whether we perpetuate the highly fruitless “discussions” on Facebook and Twitter, or we ignore the often transparent attempts of wealthy campaign contributors to shift political influence, we are all responsible for what could be a decade, or more, of major criminal justice reform. That is why we should all take solace in the fact that the newest effort to further ally the interests of the corporate, and often criminal, elite with criminal justice legislation is being confronted.
In January, Charles Koch, of the famed billionaire Koch brothers, met with conservative donors to garner support for his continued foray into the realm of criminal justice reform. This comes on the heels of several meetings throughout 2015 between representatives of Koch Industries and White House officials. The goal in all of these meetings was to discuss the bi-partisan backed criminal justice reform efforts that are currently maneuvering their ways through both the House and the Senate.
To the casual observer this may seem an appropriate step to take in fixing what many consider to be a broken system. However, what several media outlets and political watchdog groups are pointing out, is that the efforts of Koch Industries seem less of a mission to curb mass incarceration and over criminalization, and more of a thinly veiled plot to ensure that future prosecutions of the corporate sector never come to fruition.
Both the Senate and the House will vote in 2016 on criminal justice reform legislation. While the bills in both houses are being backed by Koch Industries affiliates it is the addition of a provision within the House of Representatives version of these efforts that is highly disconcerting. In November 2015, the Criminal Code Improvement Act (H.R. 4002) “cleared the [House Judiciary] committee by a voice vote without any amendments addressing complaints” (Huffington Post). Included within H.R. 4002 is the long-sought after, and Koch Industries supported, alteration to the mens rea standard for corporate criminality.
What this bill would effectively do is give corporate executives in particular, the ability to simply plead ignorance of the law-violating behavior, as well as ignorance of the law in general. As if it were not difficult enough for prosecutors to bring criminal charges against individual actors within a corporate structure H.R. 4002, if passed, would force prosecutors to prove that individuals within a corporation “knew, or had reason to believe, [their] conduct was unlawful” (H.R. 4002).
This would destroy the government’s ability to bring charges against even the most egregious corporate offenders. Charges of negligence and reckless would essentially be eliminated, and the idea of a corporate scapegoat would not only be encouraged but quite literally codified into the federal legal code.
Let us be clear on one thing, this is not the first, and will certainly not be the last attempt by corporate interests to influence the legality of business practices, and specifically the culpability of those in charge. What makes this case all the more disturbing however, is the sleight of hand chicanery that has been allowed to make it this far under the umbrella of legitimate justice reform. While Koch Industries representatives and Charles Koch himself continue to say that this part of the criminal justice reform efforts is not particularly important to them, it is the Koch supported organizations such as the American Legislative Education Council and the Texas Public Policy Foundation that have been pressing for this exact change in the intent standard for quite some time.
As we become further and further removed from legitimate criminal justice policy discussion, it is only a loud and boisterous call from the American people that can prevent corporate cronyism from over taking what little hold we have left on an ailing system. While it is true that the criminal justice system is in desperate need of an overhaul, let us not be fooled in to thinking that the needs of our nation’s victims and prisoners are represented by the heads of major corporations. The “too big to fail” mentality cannot be allowed to spill over into the “too big to be prosecuted” standard.
Timothy J. Holler, PhD
Department of Criminal Justice
University of Pittsburgh-Greensburg