'We Agree on the Bigger Issue'


The Charles Koch Institute is led by one of the richest men in the nation. Perhaps that's why its criminal justice reform summit in New Orleans this week defied conventions for gatherings of its kind.

The three-day conference, called “Advancing Justice: An Agenda for Human Dignity & Public Safety,” was billed by one of its organizers as “transideological.” The two governors who spoke at the conference – Democrat Jack Markell from Delaware and Republican Asa Hutchinson from Arkansas – did not come armed with press releases about new policies that they would be implementing.

Both governors talked about the progress they'd made so far in implementing criminal-justice reform in their states. So far, the results are modest: A 3 percent drop in Delaware's prison population and a little less than that in Arkansas. Yet Markell stopped the state's automatic ban on driver's licenses for drug offenders and gave state judges discretion to impose concurrent sentences instead of the consecutive terms previously required.

“We can lead by example,” Markell said triumphantly at a lunch address yesterday.

At dinnertime, Hutchinson told summit participants that he wanted to send a message to fellow Republicans that “rightsizing” the justice system did not run counter to conservative values.

“For years, conservatives only had one approach to the criminal-justice system: the tough-on-crime approach,” he said.

There were no grand proposals for policy change or announcements of newly minted research on issues covered during the meeting: overcriminalization, sentencing, policing, and alternatives to incarceration—to name a few. Underlining organizers' claim that the conference was nonpartisan, the two-dozen panels and plenary sessions focused more on creating consensus than on fostering debate.

For instance, on the panel “To Protect & Serve: The Militarization of Police,” it became clear that libertarian and civil-liberties advocates often agree that the average citizen should be protected from over-policing.

Kara Dansky, who authored a report on overmilitarization last year for the American Civil Liberties Union, said that she'd found that local police forces are increasingly accessing paramilitary weapons and more frequently using SWAT teams to conduct searches, often drug searches.

Absolutely, agreed Tim Lynch, head of the libertarian Cato Institute's Project on Criminal Justice. He's seen civilian police departments adopting militarization tactics and weapons and he's watched as the military itself became more and more involved in policing.

In some ways, the question is whether middle America will join the chorus now sung by the right and the left. One way to accomplish that is through education, said criminal-justice professor Peter Kraska, who calls the new policing tactics “The Militarization of Mayberry” and has traced the trend to the war on drugs and its inception in the mid- to late-1980s.

To that point too, Lynch agreed. While people in the general public know about SWAT teams in cities, they don't know how much SWAT teams are used even in the nation's small towns, where they are routinely used for routine police tasks such as executing search warrants.

In the Sentencing and Public Safety panel, too, panelists expressed a dire need to let the rest of the nation know what was wrong.

“Sentencing is being done in our name,” said Erik Luna, a scholar at the Cato Institute. “But studies have shown that the public doesn't know how the system actually works.”

For instance, most people think that every defendant has a trial, when 95 percent of cases end in plea deals, he said.

Granular Level

the conference's ultimate achievements seemed to happen on a much more granular level, through conversations held spontaneously, next to a row of coffee urns, or in a pair of armchairs next to an elevator.

Will Ruger, a former political science professor who heads research for the Charles Koch Foundation, said that sometimes he'd hear about gaps in data that the foundation could help close. Other times, if the research was out of the foundation's key areas, he might beckon to a representative from another major foundation, since all of the other big players in criminal justice grant-giving were there: the Pew Charitable Trust, MacArthur Foundation, Ford Foundation, George Soros' Open Society Foundation, and the Laura and John Arnold Foundation.

Along the hallways, next to three breakout conference rooms, were tables staffed by 20 small agencies that displayed handmade posterboards and displays about their work. It was a moment in the spotlight for them, allowing them to rub elbows with high-powered justice advocates. And again, money came into play.

Like many of the 500 people attending the conference, nearly all of those manning the small tables were in conversations about possible financial support with the Charles Koch Foundation, the institute's sister agency.

Yet it wasn't just about grants or financial support.

Alhough the Koch brothers and their conservative politics made some participants wary, people who had worked in the trenches of criminal justice for decades seemed relieved that someone new had thrown wealth and power behind justice reform.

“I'm not a fan of the Kochs, but if they want to dig into this work, I welcome it,” said one participant, who didn't want to give his name because he too had a proposal before the Koch Foundation.

Some panels and panelists reflected the views of the Kochs—libertarians who believe in the supremacy of business models over big-government bureaucracies. At a panel about re-entry, Bill Hammond of the Texas Association of Business complained about the need for prisoners to have state IDs or driver's licenses, something he believed should happen before release.

“To me, it's one of the simplest things to do,” he said.

Mark Holden, the general counsel from Koch Industries, nodded. He thought a prison official should be able to accomplish that goal.

“If not, fire everyone and close it down,” he said, noting that no other business would be rewarded for such poor performance.

Hammond nodded and quipped that Holden, his powerful friend, should make that happen—”since you're basically in charge of everything now,” he said.

The possibility of funding, along with encouragement from high-profile justice colleagues, gave an injection of new hope to a woman manning one of the 20 tables.

Katherine Katcher, founder of the Oakland-based Root & Rebound, said that she and her team of lawyers conduct trainings and answer questions, but they couldn't personally help every one of the 50,000 people who are released each year from California's jails and prisons. So she had created the “Roadmap to Re-entry Legal Guide,” a soft-cover book the size of an SAT-study guide—a DIY legal handbook for newly released prisoners who must navigate their own way through the thousands of legal barriers that face them as they leave state facilities and try to get jobs, attend school, rent apartments, or regain custody of their children.

Katcher had just submitted a proposal to the Koch Foundation for support, she said, because her work was about the collateral consequences of being incarcerated, one of the Koch institute and foundation's six main focus areas, along with overcriminalization, excessive and disproportionate sentencing, civil-asset forfeiture, and support of peace officers.

And then there was mens rea.

The legal term, familiar to law school students, popped up hundreds of times during yesterday's meetings as the focus of reform. Latin for guilty mind, mens rea—basically, intent to commit a crime—doesn't need to be proven to prosecute violators of many federal regulations involving terrorism or environmental crimes—but because there are now thousands of federal regulations that carry the force of criminal law, individuals sometimes run afoul of obscure rules, leaving them open to prosecution despite a lack of intent.

One of the oft-cited cases happened in the late 1990s: retired race car driver Bobby Unser, who got lost in a Colorado wilderness area while driving his snowmobile during a snowstorm, ended up with a criminal record because he'd driven a motorized vehicle onto federally protected land. Unser hadn't intended to do anything wrong, but he faced a big fine and a jail term.

Mens rea set Koch Industries, the philanthropic arm of the Koch Institute on the path to criminal justice reform. As Holden explained, he became interested in criminal justice after 1995, when a federal grand jury returned a 97-count criminal indictment against the company and four of its employees for violations of environmental law.

The concept of mens rea dominated one of the summit's only contentious panels, “Protecting the Innocent in an Era of Overcriminalization,” which started out with discussion of corporations hauled into federal court for such regulatory offenses.

Criminal defense attorneys who have worked on innocence cases for those falsely charged with murders quietly filed out as panelists talked about the hardships of corporations like Merrill Lynch and Arthur Andersen that had suffered a different sort of wrongful charge.

As other panelists lamented the ability of major corporations to fight the federal government in these cases, Prof. Stephen Smith of Notre Dame Law School chimed in, noting that people from low-income minority communities had a far harder time defending themselves against such statutes.

“By focusing only on business, you're making what I call the 'Chamber of Commerce' mistake,” he said, to applause.

Moderator Shana-Tara O'Toole, who heads up white-collar crime policy for the National Association of Criminal Defense Lawyers said that the sparks that flew during her session were an indication that differing perspectives that exist within a broadening coalition that supports justice reform.

“Reforms are now supported by the right and left, the rich and poor, black and white,” she said. “So we are going to disagree on some things. But we agree on the bigger issue.”

Katy Reckdahl is a New Orleans-based reporter and a frequent contributor to the New Orleans Advocate, the Hechinger Report and The New York Times, among others. She welcomes comments from readers.

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