Koch counsel lays out conservative agenda on justice reform

A Marshall Project interview with Koch Industries general counsel Mark Holden lays out a conservative agenda for criminal justice reform, summarized thusly:

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.

Quite a few Texas conservatives have already been moving in this direction. Grits' hope is that Koch's involvement will help open up a safe political space for more of their right-wing allies to join them.