Koch-Sponsored Sentencing “Reform”: A Fake Break for Minorities, A Get-Out-of-Jail Free Card for White Collar Crooks

Yves here. We’ve been in a news period where there are vastly more topics that we wish we could cover than we possibly can cover. This post will hopefully partly make up for one of the subjects that we’ve been neglecting: the sentencing “reform” headfake whose main consequence would be to make it more difficult to prosecute white collar criminals. This move occurs shortly after the new attorney general Loretta Lynch piously promised to get tough on Wall Street executives. An Aljazeera story by David Cay Johnston put it well: “Just so much reheated cabbage.” And now we have this….

By run75441. Originally published at Angry Bear

As one person I read consistently would say upon discovery of something quite obvious; “Quelle Surprise.”

I was told if I saw a prisoner, a parolee, or an Ex with a tattoo of the number “13-1/2″ on their arm, it meant 1 judge, 12 jurors, and 1/2 of a chance. 1/2 of a chance to win in court as the cards were stacked against those who could not afford adequate representation or were African American. For sure if you went to trial, the resulting sentencing would be harsher as you made them work rather than accept the offered plea bargain.

Part of the sentencing reform as proposed by Congress, backed by the Koch Bros, and supported by CAP as well as other progressive orgs. is meant to prevent the Koch Bros. associates and white collar business types from going to prison when they break the law. As to be expected, the Koch Bros. could care less about minorities and the people lacking economic means to fight back in court to prevent going to prison. Mind you now, those minorities and people of little means would still benefit from an early release; however, the effort by the Koch Bros., CAP, etc. does nothing to prevent them from going to prison in the first place.

I had previously warned on another site the effort to revise sentencing guidelines is flawed as it failed to address the upfront justice system as I explain here;

Sorry Ed, Keith, and Nancy:

The issue was always in the courts and how defendants are represented and what avenues they had available to them once and if they were convicted and sentenced. The resources are not there, they are over burdened, and they are understaffed. Defendants do not raise much of a fight in the courtroom as they lack the resource to do so. Today, plea bargaining rules the courtroom and 85%+ of all cases before a judge are plea bargained away with many defendants even signing away their rights to appeal for a period of time. It is a matter of expediency as counties and states do not want to fund the courts and defendants can be moved through the system speedily to the prisons. Besides prisons being in unlikely places away from the crowds, they are an economic incentive as they employ people and raise tax revenue in areas not populated by business.

What is happening in states and in Congress is akin to giving a person with pneumonia an aspirin and telling them they are cured. For all that is said, talked and written about for criminal justice reform, it is a just bromide to the true issues. Besides have any of you looked at the tenets of parole?

Tethering in one state costs $13 per day for the parolee just released from prison and to which there is no escape. At the end of a 2 year parole, the parolee owes a state ~$9,490 if they do not pay it as they go along (mind you they may not have a job in this economic environment). If you do not complete paying for it, you are kept on parole until it is paid. If you refuse to pay it, you go back to prison. States use these funds to finance other state costs besides just keeping tabs on the parolee.

In most states, the Parole Officer judgment is the same as a court’s decision. A prison psychiatrist can decide a parolee needs no additional counseling only to be overruled by the Parole Officer. The length of the counseling is set by them also as they all have their medical degrees(?). The parolee pays for this also. If the parolee fails the course, the course can be extended or they can go back to prison. So much for the issue of recidivism.

Today, the Washington Monthly admitted they were taken in by the efforts of the Koch Brothers. The Koch Brothers have no interest in justice for all as the administration found out and the Washington Monthly (and I assume the CAP) also found out.

“One of those bills – which has been supported by Koch Industries, libertarians and business groups – would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects “knew, or had reason to believe, the conduct was unlawful,” and did not simply unknowingly violate the law.

Many laws already carry such a requirement — known as “mens rea” – but Congress left it out of many others, and libertarian groups say that has made it too easy to unknowingly violate obscure laws. Some environmentalists argue, however, that the real motive of Charles Koch, the philanthropist and the company chairman, in supporting the legislation is to block federal regulators from pursuing potential criminal actions against his family’s network of industrial and energy companies, a charge the company denies.”

Why would the Koch Brothers be interested in such a change? It appears “‘Koch Petroleum Group knowingly and voluntarily pleaded guilty to criminal violations of the Clean Air Act and to making false statements,’ the DOJ spokesman, Wyn Hornbuckle, said. ‘These admissions and the significant criminal liability in this matter speak for themselves.’”

Is ignorance of the law an excuse for having committed a felony? It sure does not work when caught speeding (misdemeanor) . . . “well officer, I did not see the speed limit sign,” nor does it work when a person lacks cognizance when committing a crime as witnessed by the numbers of mentally ill locked away in prisons. One recent case has arisen where a 21 year old with the capacity of a seven year old is being charged after tweeting threats to schools. Reading the comments of people who know him, it does not appear he might have an evil intent or mind. The difference between the two being, those who are capable in making cognizant decisions and those being incapable of doing so (Bev Jack?). Even though it is not fool proof and when there is a question of ignorance of the law, it is time to ask for a jury trial. In which case, one can test the law by asking the question, “what would a reasonable man expect and do?”

This really is not the question in that there are those who have better standing in court than the average or less than average citizen due to the availability of resource. Those who have better resource and as a result better standing in court no longer want to make their case and be given a pass. November 24 in a NYT article “Rare White House Accord With Koch Brothers on Sentencing Frays”. Why would this be? It appears H.R. 4002 sponsored by “Wisconsin Republican Jim Sensenbrenner has made it complicated for House Democrats who have been warned (by Republicans) the passage of H.R. 4002 would be essential for obtaining support from Republicans for a larger package of criminal justice bills.” What does this bill do?

In effect it gives businesses a get out of jail free card; “would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects ‘knew, or had reason to believe, the conduct was unlawful,’ and did not simply unknowingly violate the law.”

Many laws already contain such language which causes the court to prove the defendant knowingly violated the law (except in the case of insanity where the burden of proof is with the defendant). As DOJ spokesman Melanie Newman stated: “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal.” Those who suffer from mental illness have to prove they lacked an evil mindset and those who do not declare mental illness, do not have such a burden. The potential impact is many more of those could cause potential harm to the environment and walk free. The mentally ill (favored scapegoat of the NRA and weapons promoters these days) are held to a higher standard.

“The proposed standard, Justice Department officials said, might have prevented guilty pleas in a variety of cases, such as the charges filed in 2013 against Jensen Farms of Colorado for failing to adequately clean cantaloupe, resulting in an outbreak of food-borne illness that was cited as a factor in at least 33 deaths. It also might have prevented the plea in the 2012 charges against the owner of a pharmacy who sold mislabeled, super-potent painkillers blamed in three deaths.” The same holds true for “a compounding drug company prepared drugs for injection which resulted in a total of 25 deaths and injury in Michigan and other states.

Even so, some liberal representatives still support the legislation which may result from the passage of H.R 4002 even though it does little to provide the necessary representation in court for minorities and others to get a fair trial without plea bargaining. In a statement on Tuesday (November), Michigan Representative John Conyers said “he supported the bill which the Judiciary Committee approved by voice vote last week because outside parties had raised ‘a number of concerns about inadequate, and sometimes completely absent, intent requirements for federal criminal offenses.’” Seriously, Representative John Conyers? Where is the concern for your constituents who face the courts on a daily basis with nothing to defend themselves other than plea-bargains and the grace of the court (if such exists). The present legislation is little more than a back door correction of what happens and should not have happened in the first place during court proceeding.

Critics have said those who oppose the change due to the Sensenbrenner addition are exaggerating the impact of it as it is only a small portion of the entire bill focusing on eliminating mandatory sentencing. The elimination of mandatory sentencing will not stop a judge from applying a harsh sentence forcing a defendant to apply to a COA to overturn the judge and costing $thousands more. It is true a reduction in sentencing will help the overall issue of too many in prison; but, this solution is only a part of the problem. Most of the issue is on the front end of the justice system in the US. The lack of adequate representation, the under-staffing of public defender offices, the cutting of funds for public defenders, the over use of plea bargaining to short circuit the justice system, the burdens on courts, etc. The poor and minorities deserve the same representation and access to justice as what the associates of the Koch Bros. industries receive in court. This is a far bigger problem and sends many more people to prison than does drug sentencing which could be mitigated if better representation existed. It is here Congress, Conyers, CAP and all the progressive orgs should spend their money and energy. Otherwise much of the effort will not yield the payoff in preventing people from going to prison as expected.

12 Jurors, 1 judge, and 1/2 of a chance.

My $.02 . . .


A Study In Contrasts Nancy LeTourneau; Washington Monthly
Criminal Justice Reform: It Depends Upon Where You Look; Ed Kilgore; Washington Monthly
Quick Takes – my answer to Washington Monthly; Nancy LeTourneau; Washington Monthly
Rare White House Accord With Koch Brothers on Sentencing Frays; Matt Apuzzo and Eric Lipton; NYT

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  1. David Mills

    I am sorry, I know the pun is the lowest form of humour and please don’t have the moderator execute me… but is that headline Freudian? :-D

    1. bob

      It’s teabagging in its most base form.

      First, they don’t pronounce it like it should be pronounced. Then, they’ve got built a built in guffaw when someone mispronounces it.

      Literally shoving their “kock” in your face, and *daring* you to touch it. Or, pardon, say it. Teabag.

      It’s gotta be part of the upperclass play book now. Have a normal looking name, but pronounce it in some completely-without-logic-way. Broad is the other oligarch that comes immediately to mind.

      1. Vatch

        They pronounce it like the abbreviation of “cocaine”, which is possibly meaningful. But I like to mispronounce it, just as I like to mispronounce former Speaker of the House John Boehner’s name!

    2. hunkerdown

      Surely long-time residents of New York wouldn’t forget Mayor Ed, whose last name was apparently too often pronounced like crotch without the R for his personal comfort, musing about helpfully changing his last name to Coke-Is-It.

    3. Kuhio Kane

      The Center for American Progress is hardly a progressive organization. It is an organization like The American Way. CAP hides its support of US world domination; of US imperialism and domestic tyranny as “progressive,” while, in fact, it surreptitously supports neocon / neoliberal policy.

  2. Wade Riddick

    With regards to the New England compounding scandal, here are two little facts they never reported:

    1) Corticosteroid shots made by big pharma contained a preservative toxic to nerves and, hence, they were inappropriate for spinal injections. All the national corporations had to do to serve this market was remove this preservative, but it just wasn’t “profitable” enough. As the FDA strangles compounding pharmacies, expect to see patient suffering increase as they go without customized medicines and the epic shortages get worse. This is yet another example of the price-fixing scheme about which Phillip Zweig has written.

    2) A quick search on PubMed will reveal that corticosteroids kill chondrocytes, the cells responsible for making the cartilage in your joints (COX-2 inhibitors pose similar problems). In other words, these medical specialists have been injecting degenerative disks in people’s spines with chemicals that make joints degenerate. The more you do it, the worse the risk. Hardly what I would call a sound medical practice – but the FDA completely failed to mention that. Like they failed to mention they had adequate statutory authority to do something about Ameridose/New England without having to change the law. They’ve coopted that “reform” into giving them the power to shut down compounding in general, this one last avenue of drug distribution that’s outside the reach of the price-fixing PMOs and PBMs that *legally* employ kickbacks in the supply chain. (Which is one of the ways railroads managed to squeeze both farmers and urban consumers in the late 1800s.) Your drug prices are about to skyrocket again, just like they did when the PBMs were first introduced.

    FYI, if you ad magnesium to a corticosteroid or anesthetic shot it appears to block most of the negative effects on cartilage.

  3. equote

    What is happening in states and in Congress is akin to giving a person with pneumonia an aspirin and telling them they are cured. — Wrong! we are educating felons — our prisons are ‘higher education’ for crime!
    …evidence shows modest incapacitation effects while defendants are in jail or prison, these short-run gains are offset by long-term increases in post-release criminal behavior. What is particularly concerning is that not only is there a net increase in criminal activity but also a shift towards more serious illegal activity. Former inmates are documented as branching out to new types of crime, especially property (e.g. theft or burglary) and drug-related offenses.
    MICHAEL MUELLER-SMITH see: http://sites.lsa.umich.edu/mgms/wp-content/uploads/sites/283/2015/07/incar.pdf

    1. tegnost

      training a whitecollar criminal who is proven responsible for deaths or stealing millions how to smash and grab a car or steal a few bits of jewelry is greatly to the benefit of society as a whole. you forget the magnitude of the crimes you are so anxious to forgive.

    2. run75441

      Your link did not work.

      Perhaps you misunderstood? I am all for deterring incarceration and providing the proper defense to do so which is sadly lacking in the author’s state.

  4. Anders

    Does the law not work that way already? As I remember, NC has on several occasions referred to successful use of the “I’m the CEO and I know nothing” defense.

    1. John Zelnicker

      @Anders – The point is that some of the federal criminal laws work that way and some don’t. The Koch’s and other libertarians want to extend the “knew or had reason to know” requirements to those laws where it is absent.

      The CEO “know-nothing” defense was supposed to be eliminated by Sarbanes-Oxley which basically required them to certify that they knew what was going on in their companies. Unfortunately, this law has been rarely used.

    2. run75441

      Not necessarily and it depends upon who the burden of proof is placed upon. What we see here is a shift from the defendant to the prosecutor as promoted by Sensenbrenner and the Koch Brothers in their sponsorship.

      This is a quote as taken from above and about H.R. 4002: “In effect it gives businesses a get out of jail free card; “would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects ‘knew, or had reason to believe, the conduct was unlawful,’ and did not simply unknowingly violate the law.”

      Remember too what I implied, executives, etc. have better representation than African Americans and the poor as they can afford the $500 to $1000/hour attorneys.

      1. Edward J Max

        O.J. had pretty good legal representation, however with that jury, he probably did not need any legal representation.

  5. W. Greenhouse

    Three points from a law graduate/bar applicant who’s worked in public defender offices and with people who’ve used the insanity plea:

    1) You’re incorrect in your description of the mechanics of the insanity defense. Yes, a defendant does have the burden of proof for an “affirmative defense” like insanity or self-defense, but that doesn’t remove the prosecution’s burden to prove all the elements of the offense itself beyond a reasonable doubt. And you’re right that the insanity defense is incredibly difficult to pull off successfully, but I don’t see how that is going to become worse as a consequence of this legislation. The damage was done in the 1980s, during the moral panic around John Hinckley’s trial and successful use of the insanity defense for the assassination attempt on Reagan. Many states and the feds revised their insanity standards at that time, in some cases completely eliminating the affirmative defense and turning it into a mitigating factor at sentencing (Pennsylvania for example has a “guilty but mentally ill” status, but no “not guilty by reason of insanity”).

    In fact, adding specific intent requirements to statutes that currently lack them will let some defendants with mental illnesses who can’t prove insanity under the current incredibly harsh standards at least try to defend themselves under “diminished capacity,” which defeats specific-intent charges by proving that, while you might generally be able to live in society and conform your conduct to the law, you lacked the mental ability to plan ahead to do the crime.

    2) Of course you’re right that courts and public defender systems need better funding (and I’m not just saying that because I want a job that won’t make me sick). Of course we need to fix the “front end.” But adding mens rea requirements to many criminal statutes is related to fixing the front end. The prosecution having to prove intent improves the defendant’s position by making it that much harder for prosecutors to “throw the book” at defendants, overcharging them to intimidate them into a plea. Mens rea requirements should also help to penalize entrapment by law enforcement. It may make it slightly harder in some cases for prosecutors to use pleas, informants, etc. to work their way up an actual criminal conspiracy, but in a so-called justice system where we have a conviction rate in the high 90s, that really doesn’t bother me. The game is rigged, and this small tilt won’t erase the overwhelming bias in favor of the government.

    3) Many of the corporate charges you cite here also have parallel sections in the Code of Federal Regulations, where everything is strict liability (no intent or mens rea requirements, no defenses based on insanity, mistake of fact, etc.–if you physically did it, you did it). We need to empower the enforcers within our federal regulatory agencies, and also ensure that they stop pulling bullshit like the SEC’s no-fault, no-open-record non-plea agreements with corporate defendants.

    1. Jim Haygood

      ‘in a so-called justice system where we have a conviction rate in the high 90s, that really doesn’t bother me. The game is rigged, and this small tilt won’t erase the overwhelming bias in favor of the government.’

      Sadly true. Remember the days of powerful defense attorneys with outsized personalities? They’re gone now. With a conviction rate in the high 90s, a defense attorney (including a public defender) is just a negotiator for a better plea bargain.

      Amendment VI is de facto defunct. “Justice” Anthony Kennedy ratified its demise with his bland capitulation in 2012 that ours ‘is for the most part a system of pleas, not a system of trials.’ That’s not what Amendment VI says. But it’s okay with the hacks in black.

      1. W. Greenhouse

        Well, via Lafler v. Cooper the SCOTUS lately recognized the plea bargain as an important enough part of a defense lawyer’s job that Amendment VI applies at that time, too, and so defendants have a right to habeas corpus for ineffective assistance of counsel (counsel so useless that it’s as bad or worse than no counsel at all) during plea-bargaining. But that’s further burdening everything on what this post calls the back end of the system, where you’ve already been in prison for years (with no right to speedy adjudication during post-conviction relief/habeas).

        1. Jim Haygood

          Here’s an example of the conviction machine at work:

          Under Minnesota law, people convicted of refusing to be tested [for blood alcohol] can face a mandatory minimum sentence of three years — and up to seven years — even if they are never convicted of drunken driving.


          So a decision made under duress at a traffic stop, by a lay person lacking legal advice, can get him/her three to seven years in prison.

          The Supreme Court has agreed to review these laws, which exist in 13 states. But one can easily imagine Anthony Kennedy finding no problem with them at all.

          Status offenses are the new premeditated murder.

        2. run75441


          You explained it well. Thanks! Winning ineffective attorney claims is pretty difficlt to do even with what I stated further down.

      2. run75441


        Well said.

        Little gods in black robes looking down at you from their pulpit as you grovel before them. Relating to my own experience in a ten year trip to SCOTUS, I have often told people to avoid the trip to court at all costs as you will not win and you will make your attorney wealthy in the process. The system is rigged against defendants and the system does not care. If the truth sneaks out along the way, it is more of a surprise. The prosecutors like to get their notch in their gun or broomstick. They are paid to win (period).

        The powerful attorneys are not all gone. We had one who help train federal judges. A nice man who understood what took place.

    2. run75441


      Of course what you say is mostly correct.

      1. Let me say this on your comments on insanity. “doesn’t remove the prosecution’s burden to prove all the elements of the offense itself beyond a reasonable doubt.” When this is presented to the defense properly, then it is their issue. Unfortunately the written law does not decide such and it typically ends up a judge or justice deciding such. You are reading much more into my words than intended. I do appreciate you explaining it in greater detail

      2. I never said to add “mens rea” and what you said is correct. What is taking place here is the Koch Brothers desire to shift “mens rea” (where it is in some laws) from defendant to prosecutor. This is not so much for the under represented as it is for the Koch Brothers wanting to escape prosecution altogether for environmental issues which most large businesses are aware. The Koch Brothers could care less about the plebeians. The rest of your comments I do agree with and I like them.

      3. Agreed. Much of what I was citing was examples so people would understand what some of my complaints were about. You have added more to my explanation which is not necessarily bad.

      Thank you for your comments. I think I captured all of what I wanted to comment on in response.

  6. equote

    It seems that the link site removed the article. I traced to http://sites.lsa.umich.edu/mgms/wp-content/uploads/sites/283/2015/07/ and the pdf was not among the documents it the directory only a paper on a different subject. Sorry. I really should have downloaded the document but did not.

    I don’t disagree with the comments about white collar criminals, I just want to open the question on the effectiveness of prison as a treatment for crime. It is clear that money and/or ‘influence’ can pervert justice. William Black suposedly said “A rule of law only works if it is enforced against violators, no matter …”. Nowhere is that more evident than here in Texas.
    Scott Henson at a kinda local blog (http://gritsforbreakfast.blogspot.com/2015/03/ — I tested this link and it worked) offers a forum on criminal justice here.

  7. run75441


    I will read both citations when I get a chance. I am always interested in information. I will google the first site to see if can be found.

    Our first attorney was a crackhead who stole $20,000 from us. He lied to the court, ran a drug house, and contributed to the death of another in said house with drugs obtained by his mule for himself (crack) and her (heroin).

    Oh and the court claimed he was an honorable man prior to these indiscretions.

    He later abandon several hundred cases after collecting the fees. The attorney grievance commission and I went round and round on him. I was just a commoner and he was an officer of the court (this would not have happen out east). He was later disbarred with no apology to those who lost their money and ourselves from the commission.

    Even then the court clung to its beliefs. Even when several of his cases were overturned due to be unprepared after months had passed. The justice system is rigged.

    To your point on prison. Parole after 3 years and after 5 years does not yield vast increases in recidivism. It was more like 63% to 73%. What would be the point of holding them longer?.As I stated for a parolee making minimum wage the game is rigged even more so against them with non-negotiable or non cancel-able fees for a tether and classes. They are a cash cow for the state an used to fund state expenses and indentured to the state. I would look to other cause of recidivism from my being around prisoners and parolees.

    Thre are many fine studies on the death sentence and its impact on homicide too..

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