This seemed inevitable, didn’t it? The New York Times reported on November 24 about an 11th-hour effort to twist a criminal justice reform package going through Congress into a get out of jail free card for corporate criminals.
The coalition to reform the criminal justice system was always a bit tenuous. A fair amount of libertarians, conservatives, liberals, and leftists have always agreed that the War on Drugs has been a failure and led to widespread injustice. But recently a new effort to reform the draconian drug war sentencing laws appeared to have linked the disparate ideological groups together towards a common end.
But now it appears that consensus-based effort let through a Trojan horse. The criminal justice reforms being prepared in the Republican-led House of Representatives will now reportedly include rollbacks on how corporations and business executives are prosecuted. The Times claims the new rules will make it “harder to prosecute corporate polluters, producers of tainted food and other white-collar criminals.”
Koch Industries is said to be championing a bill sponsored be Representative Jim Sensenbrenner called the Criminal Code Improvement Act of 2015, which will, among other things, raise the bar on what it takes to prosecute someone violating regulations on business.
If the Koch-backed legislation is enacted prosecutors will not just have to prove that a person or business broke the law, but that they “knew, or had reason to believe, the conduct was unlawful.” This standard of intent or mens rea, will make it significantly harder to prosecute businesses that break laws designed to protect consumers and the environment.
The complexity of the regulations needed to police corporate misconduct in sectors like financial services, energy, food, and healthcare makes it easy for violators to claim ignorance — especially if they are a large business employing a team of lawyers to write memos that interpret what the business is doing as legal. Forcing prosecutors to prove beyond a reasonable doubt that not only was the law violated but that the violator knew they were violating the law could thwart a number of efforts — in and out of the court room — to rein in corporate misconduct. Of course, that is exactly why business groups and dirty energy-producers like Koch Industries love the idea.
Not surprisingly, the Republicans are pressing their advantage. It appears that the War on Drugs criminal justice reforms will not be allowed to make it through Congress unless the Koch brothers and business groups get their way on knocking out the teeth of corporate crime prosecution rules.
Democrats are now forced to decide if they will hold their nose on the corporate crime giveaway to see drug law sentencing reform make it through, or fight the Kochs and risk the whole effort imploding.