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Koch Industries paves bipartisan path to prison and justice reform

Mark Holden, an attorney for Koch Industries, has been a driving force within Koch for pushing criminal justice reform.
Mark Holden, an attorney for Koch Industries, has been a driving force within Koch for pushing criminal justice reform. The Wichita Eagle

At the end of a presentation on criminal justice reform at a recent Big Brothers Big Sisters event in Wichita, a woman stood up and asked Mark Holden, general counsel and senior vice president at Koch Industries, “How will these laws benefit Koch?” according to Holden.

“And I go, ‘What do you mean? We don’t have any criminal cases, knock on wood,’ ” Holden said.

The woman pressed him about pollution cases. “I said, ‘Look, it’s not going to benefit us in any way, really, this is not about us,’ ” Holden told her. “‘We can afford the best lawyers. We’ll always be OK. This isn’t about us at all.’ 

For more than a year Holden has been hitting the same message: the criminal justice system needs reform and the ones who most need it are the poor.

Holden has been traveling across the country for Koch Industries the past year, speaking at forums, meeting with elected officials and advocating for sweeping criminal justice reform. His work has caught the attention of the Washington establishment because of “the strange bedfellows” he has made, partnering with politicians and organizations from all political persuasions, some of which once considered him a political adversary.

This is the one issue, once people get educated on it, there is nobody comfortable with what we’re doing: left, right, center. Atheists, evangelicals, everybody in between.

Mark Holden, General Counsel for Koch Industries

Now many of those same insiders say Holden’s work has pushed forward legislation that had languished for decades. Holden was named, along with his boss, Charles Koch, as the sixth most transformative person in politics in 2015 by Politico, just after presidential candidate Bernie Sanders and Pope Francis.

“I never expected that I would be on ‘Morning Joe’ or ‘Anderson Cooper’ or going to the White House,” Holden said.

THE KID FROM WORCESTER

Holden is a lanky 6 feet 4 inches tall who spikes up what remains of his hair and doesn’t like to cross his arms for photos. Just before he was about to make a TV appearance last month, he joked that his physical appearance alone should be proof enough that his work is not about publicity.

“If it is a PR ploy, I am not the face of a PR campaign,” Holden said before appearing on “Morning Joe,” a political talk show that came to Wichita.

Holden has spent more than 20 years at Koch, behind the scenes in Wichita, “grinding,” he said, rising from a labor and compliance lawyer to one of the most senior positions at the company. Holden talks about how his first contact with the justice system came as a prison guard in college in Worcester, Mass., where he grew up. He still speaks with a New England accent. (“WUH-sta” is the proper pronunciation for a local working-class kid like himself, he said, though technically it’s pronounced “WOO-ster.”)

For $6 an hour, he handed out meals and medication, shuttled prisoners to meetings and opened and closed cells. But one thing surprised him: The prison was filled with kids whom he had lost touch with from Chandler Junior High School, who had once attended the same church and even played on the same sports teams. This was the early 1980s, a time when the inner cities were being overrun with crack cocaine and many public officials responded by clamping down and increasing jail sentences for drug offenders.

2.2 million prisoners in the U.S.

25 percent share of world prison population in U.S.

$80 billion yearly cost to hold prisoners

In his presentations, Holden likes to quote criminal justice reformer Bryan Stevenson that this kind of “proximity” to people who are affected is key to motivating people to push for change.

Proximity, Holden said, is how criminal justice reform landed on Koch Industries’ political agenda two decades later. Although the company had fought a number of civil cases in the past, in the late 1990s the Justice Department tried to press criminal charges in an environmental case against four Koch employees, two of whom were Holden’s friends.

“One of the guys was 50 when he got indicted,” Holden said. “He was facing 30 years. He was going to die in prison, he had two little kids. So that was messed up, that was completely wrong.”

The company had self-reported the problem at the Corpus Christi refinery, Holden said, so he and others didn’t think the criminal charges made sense. The company fought the charges for six years and eventually got all but one count dismissed as part of a $20 million settlement, the largest settlement of its kind at the time.

Charles Koch and others reflected on how “immobilized” the company had become and how “terrified” its employees were because of the criminal charges. They started investigating what it was like for ordinary people who faced criminal charges but didn’t have millions to spend on legal defense.

They have had access to some of the key players in Congress that will take a call from Mark Holden, general counsel at Koch Industries, whereas they may not take a call from me.

Julie Stewart, president of Families Against Mandatory Minimums

What they found was harrowing, and the numbers have only continued to get worse: America currently has around 2.2 million people locked up, a 500 percent increase from when Holden worked as a prison guard. The prison population makes up 25 percent of the world’s prisoners even though Americans only make up 5 percent of the population. A number of academic studies have concluded that longer prison sentences are doing little or nothing to reduce crime.

"I saw a lot more people going to prison that had drug and alcohol problems and addiction issues that ended up coming out in a lot worse shape than when they went in," says Ninemire, who, after serving 10 years, now owns a business and counsels ot

The more people the country has locked up, the more the economy has suffered. It costs the government $80 billion a year just to hold all the prisoners. Instead of reforming prisoners, many prisons leave them ill-prepared to return to society, and they soon return to prison. If some of these prisons were run like private companies, their wardens would have been fired long ago, Holden said.

It became clear that this was an issue that aligned with some of Charles Koch’s most deeply held political beliefs, according to Holden. It’s an egregious example of a big government program run amok: not only was the system filled with waste, but it was depriving millions of Americans of their life, liberty and pursuit of happiness.

MEDIA FRENZY

Over the next dozen years, Holden and the company studied and supported criminal justice reform, particularly of the grand jury system, according to Holden, and mostly at the state level. The company partnered with reform groups in states like Texas, Mississippi, Utah and South Carolina to help draft model legislation, Holden said.

These experiments at the state level have been crucial for pushing for national change. The fact that crime has dropped in most of the 22 states that have enacted some kind of criminal justice reform shows that it can work anywhere, according to Holden. He said Koch Industries plans to support similar reforms in Kansas in 2016. Although Holden often refers to the quality of an El Dorado prisoner reform program in his speeches, Kansas hasn’t passed a reform bill.

Tisa Micheaux was in prison for just under a year in the late 1990s. Upon her release, she was hopeful to start a new life, she says, "but that didn't happen, because society's not that forgiving."

In January, Holden began to aggressively push for reform at the federal level. Of the 55 articles that the company has posted about its work, 54 are dated October 2014 or later.

We need to be smart on crime and soft on taxpayers. We’re treating people we’re mad at like people we’re afraid of.

Two common phrases from Mark Holden, general counsel at Koch Industries

The decision to ramp up its involvement was an attempt to take advantage of a fortuitous political opportunity, Holden said. In October, he told a New York Times reporter about money Koch Industries gave to the National Association of Criminal Defense Lawyers that would lead to better criminal defense for the poor. “The next thing you know, that (story) got picked up,” Holden said. “…Wow, Koch is involved in this. It was like out of nowhere and it caught fire.”

Then Charles Koch did an interview with The Eagle last December about his commitment to criminal justice reform, and again the story gained media traction. Holden conferred with Koch, who told him that they should expand the message. “Aren’t we doing this to help people improve their lives and won’t this reduce poverty?” Holden remembers Koch telling him.

Holden and Koch published an op-ed in Politico on Jan. 7. “After that it totally exploded,” Holden said. “I was getting calls from everybody then.”

Holden received calls from politicians on the left, right and center as well as a number of media outlets. Within the next couple of months he helped form partnerships with disparate groups like the American Civil Liberties Union, the Center for American Progress and the Faith and Freedom Coalition. He met with liberal politicians like Cory Booker and conservatives like Rand Paul. He appeared on media outlets like MSNBC, CNN and Fox.

In March, Koch Industries removed the question on its job applications about prior criminal history. This impressed Valerie Jarrett, a close adviser to President Obama, who had showed up unexpectedly at Holden’s first White House meeting, Holden said.

The system that is set up now, I’ve said this 100 times, it’s immoral, it’s unconstitutional, it’s fiscally ruinous.

Mark Holden, general counsel at Koch Industries

Koch’s criminal justice push followed a public relations revamp in 2014, according to the New York Times. Between 2010 and 2014 when the attacks on Koch Industries mounted, Holden was often the one charged with defending the company.

The positive press that Koch Industries received on criminal justice reform was unlike anything it had received, Holden said. The company had previously worked on issues such as reducing government debt that had received moderate and conservative support, according to Holden, but it did not receive the same attention.

“This one is at a grander scale because it’s such a big issue for everybody across the board,” Holden said. “This is the one issue, once people get educated on it, there is nobody comfortable with what we’re doing: left, right, center. Atheists, evangelicals, everybody in between. And so we haven’t had an issue that has been as ripe for it, that touches everybody one way or another, as this issue.”

Holden repeats a few catch phrases in many of his appearances such as, “We need to be smart on crime and soft on taxpayers” and “We’re treating people we’re mad at like people we’re afraid of.” But his language is also frequently radical and urgent. “The system that is set up now, I’ve said this 100 times,” Holden said, “it’s immoral, it’s unconstitutional, it’s fiscally ruinous.”

GETTING IT DONE

A number of political insiders and activists who have been working on criminal justice reform for decades say Koch’s support has provided political cover for conservative politicians. And conservative support has allowed liberals and moderates to broadcast their support without fear of appearing soft on crime.

Charles Koch deserves much of the credit, according to Julie Stewart, president and founder of Families Against Mandatory Minimums, which has been a leader in pushing for lighter sentences for low-level drug offenders.

“As someone who has been in this field a really long time I’ve never seen this kind of attention before,” said Stewart, who started FAMM in 1991. “They have had access to some of the key players in Congress that will take a call from Mark Holden, general counsel at Koch Industries, whereas they may not take a call from me.”

Mark has been doing this maybe two years and he comes in at a good time. We’ve made the water warm, and he wants to get something passed that’s good – good enough to be able to say they’ve done something.

Julie Stewart, president of Families Against Mandatory Minimums

Stewart and Holden both like the SAFE Justice Act, a comprehensive, bipartisan criminal justice reform bill that was introduced in June. “It’s comprehensive but it’s probably too much,” Holden said.

The reform bills currently in the House and Senate have a better chance of passing, according to Holden. “Both bills are imperfect. All this is imperfect, because it’s politics, it’s the art of the imperfect,” Holden said.

The currently favored legislation’s most-cited provision would do away with many mandatory minimum sentences for non-repeat, non-violent offenders and give judges discretion to give more lenient sentences.

Stewart plans to fight to make the bills more expansive. “I’ve been doing this 24 years so I want all I can get. … And Mark has been doing this maybe two years and he comes in at a good time. We’ve made the water warm, and he wants to get something passed that’s good – good enough to be able to say they’ve done something,” Stewart said. “And I get that and I’m not criticizing him for that. But I think we come at this from different perspectives.”

She worries that if Congress or the White House changes hands, they may not get another chance.“Who knows if crime is going to go up?” Stewart said. “Any number of things can happen that will put the kibosh on the momentum that has brought us to this moment.”

But Holden is more optimistic. It’s only been five years since Congress passed a law that reduced sentences for crack cocaine. That success, along with recent successes at the state level, are fueling momentum for reform, he said.

Holden sees the issue without the bias of a lifetime immersed in Washington politics, he said. “I mean in any other endeavor I’ve ever been involved in, personal, business, sports teams when I was younger, no one ever says, ‘this is our one chance, we’re going to do this now and then we’re never going to do anything again,’ ” Holden said.

Holden said he spends at least 60 percent of his time promoting criminal justice reform, which has included about 25 public events and many more private meetings. He’s worked alongside Koch Industries’ media team, the legal team and a public policy team in Wichita and Washington. Koch Industries has increased its donations as well, although Holden said he doesn’t track how much money has been spent.

And Freedom Partners, which oversees the donor network that David and Charles Koch created, has added two questions on criminal justice issues to the questionnaire it gave 2016 presidential candidates.

But in December the Huffington Post and New York Times published stories with accusations that the criminal justice reform bills contained a provision that would make it harder to prosecute companies like Koch for misdeeds.

The provision, referred to generally as mens rea, would require that prosecutors prove a defendant intended to break a law in order to be convicted. The Justice Department has argued that such provisions will lead defendants to claim they didn’t know they were committing a crime in order to escape punishment.

Although the mens rea issue is important, Holden said, Koch Industries has not been the one pushing it this time and Koch will support legislation that does not include it. Recently, Holden and Jarrett met in the White House for the fourth time, in what Bloomberg called perhaps “the most interesting meeting in Washington this week.” They reiterated their mutual support for reform, though Jarrett’s office also noted “the administration’s concerns on pending mens rea legislation.”

THE RED ZONE

Holden, who has joked that he is the biggest New England Patriots fan in Wichita, sometimes uses football metaphors to describe the current fight.

“I think personally we’re in the red zone, to use a football term,” Holden said. “I think it’s going to get over the goal line, hopefully (at the) end of January, February, and we have something signed by the president by April, Easter time, that’s my goal, that’s our hope.”

He wants to get something done, he said, before “2016 kicks in too much and everyone is going back to their corners.” Holden called out Republican presidential candidate Ted Cruz, who he believes supports criminal justice reform, when Cruz recently voted against a reform bill in the Senate Judiciary Committee.

Holden recently told a reporter that the most recent book he read was about Bill Belichick, the Patriots’ coach. After being asked whether he thought Belichick and the Kochs were similar, because both have received a lot of critical press despite being at the top of their fields, Holden responded: “Bill Belichick is a genius, Charles is a genius. Does that make me Tom Brady (the Patriots’ quarterback)? I like that.”

Oliver Morrison: 316-268-6499, @ORMorrison

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