Is the Kochs' Support for Criminal Justice Reform a P.R. Move?

Jane Mayer implies their interest in the issue is new while conceding it is not.


Libertarian Party

Last week I noted that a New York Times review of Jane Mayer's new book about the Koch brothers included a highly selective description of the Libertarian Party platform on which David Koch (a Reason Foundation trustee) ran for vice president in 1980. That gloss seemed designed to elide any overlap between libertarian and progressive positions. In the latest issue of The New Yorker, Mayer herself does something similar.

The main thesis of Mayer's article is that the Kochs' support for criminal justice reform is part of a public relations campaign aimed at improving their reputation among moderates who view them as polluting plutocrats with no sympathy for the common man. Mayer undermines that thesis at several points, including these comments from environmentalist and criminal justice activist Van Jones:

In an interview, Jones defended his partnership with the Kochs on sentencing reform. "Everyone has his eyes wide open about the Kochs' politics and their ultimate agenda," he said. "But if you're sitting in prison right now you're not praying that the Koch brothers won't help." Jones believes that the Kochs' embrace of the issue is driven by their strong libertarian convictions. "It's not part of presenting the company in a new light," he told me. "It doesn't make sense to mix their criminal-justice-reform work with their corporate advertising. The Koch brothers have a despicable record on everything under the sun, from campaign finance to poisoning the planet, but they have been on this issue for years. Mass incarceration is the opposite of liberty and justice. There are very deeply held principles for both sides."

Mayer concedes that "Charles Koch has supported criminal-justice reform for decades," but she says that interest grew mainly out of his company's experience with pollution-related federal charges and was largely limited to white-collar crime until recently:

It is true that, at least as far back as 1980, when Charles Koch enlisted David, then a company executive, to run for Vice-President of the United States on the Libertarian Party ticket, the brothers have publicly supported radical reform of America's criminal-justice system. The platform of the Libertarian Party in 1980 called for an end to all prosecutions of tax evaders and the abolition of a number of federal agencies whose regulations Koch Industries and other businesses have chafed at, including the E.P.A., the Occupational Safety and Health Administration, and the Federal Election Commission, whose campaign-spending limits the brothers opposed. But the Kochs, as hard-line libertarians, have had goals quite different from those of many of their liberal allies. Their distaste for the American criminal-justice system is bound up in distrust of government and a preference for private enterprise. Until recently, the criminal-justice victims the Kochs focussed on were businessmen who had run afoul of the modern regulatory state—that is, people like them.

Even when Mayer is describing the Kochs' longstanding support for "radical reform of America's criminal-justice system," she omits details of the 1980 L.P. platform that fit that description but don't fit her portrait of the brothers as sympathetic only to "people like them." In addition to the planks Mayer chooses to mention, the L.P. in 1980 (as now) opposed "all laws prohibiting the production, sale, possession, or use of drugs"; "all laws regarding consensual sexual relations, including prostitution and solicitation"; and "all forms of government censorship, including anti-pornography laws." It championed "safeguards for the criminally accused" and decried the erosion of Fourth Amendment rights. The party also supported open borders and opposed crackdowns on unauthorized immigrants. Contrary to Mayer's spin, the primary beneficiaries of those positions are not rich white guys.

Mayer also notes that the Kochs' support for including a mens rea requirement in the definition of regulatory offenses that carry criminal penalties (a goal they say they are willing to drop if it endangers sentencing reform) has upset some of their allies on the left. But treating unintentional legal violations as crimes is unjust regardless of the defendant's race, occupation, or socioeconomic status. On this issue it is progressives who are being inconsistent because they have trouble sympathizing with people who are not like them.