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June 2, 2015

Might Charles Koch put big money behind big reform of federal clemency process?

Post - March 2013 (5)The question in the title of this post is prompted by this notable new USA Today article headlined "Koch urges Obama administration to speed up clemency program." Here are excerpts:

Billionaire industrialist Charles Koch and top officials in his company are calling for the Obama administration to release from prison the thousands of non-violent offenders who qualify for clemency under a Justice Department initiative.  The push to shorten long federal sentences, mostly for drug offenses, has had a sluggish start since it was announced in April 2014. President Obama has commuted the sentences of only a few dozen inmates since the program took effect.

"I'm not faulting the administration," Mark Holden, Koch Industries' senior vice president and general counsel told USA TODAY on Monday. But, he said, "people got their hopes up. Why isn't it going any faster?"

Koch Industries officials did not offer a specific policy changes but hope their statement of unequivocal support for the clemency initiative will focus attention on the program. "When Charles says something … it helps to highlight the issue and bring other like-minded people to the table," Holden said.

Charles Koch, whose multibillion-dollar industrial conglomerate is one of the nation's largest private companies, has an outsize influence in Republican politics. His expansive network plans to spend about $900 million ahead of 2016 elections — about $300 million of which will be spent on electoral politics, he said. Koch also recently told USA TODAY that he might financially support up to five Republican presidential contenders in next year's primary: Wisconsin Gov. Scott Walker, former Florida governor Jeb Bush and Sens. Ted Cruz of Texas, Rand Paul of Kentucky and Marco Rubio of Florida.

"We're going to be supportive of those candidates who are supportive of the issues that are important to us," Holden said Monday, when asked what role the clemency issue might play in the 2016 race. Criminal-justice reform, he said, is a key part of Koch's "freedom framework." Holden noted that Paul and Cruz have pushed for changes to the system. Both have signed on to a Senate bill that would cut mandatory minimum sentences for drug offenses....

Lawyers involved in the clemency initiative say the process has been slowed, in part, because the eligibility standards may be too tough for the inmates to meet. The main targets of the program are drug offenders who were sentenced under a strict crack-cocaine law that was eased by Congress in 2010. To be eligible, inmates must be non-violent offenders who already have served 10 years and would have received shorter prison terms had they been sentenced under today's laws. They also must have a record of good conduct in prison and no significant criminal history....

More than 30,000 federal inmates applied for representation through the Clemency Project 2014, a consortium of legal organizations, including the American Bar Association and The National Association of Criminal Defense Lawyers, that are helping eligible inmates seek commutations.

Justice Department officials did not immediately respond to a request for comment Monday but have said they are likely to recommend more commutations to the White House. The administration also has requested a 66% budget increase for the Justice Department's Office of Pardon Attorney, which reviews the clemency requests.

Holden and Koch Industries spokeswoman Melissa Cohlmia said company officials decided to publicly support the clemency initiative and call for the faster release of inmates after receiving requests both from organizations and individual inmates, seeking Koch support for clemency applications. In a statement, Holden said Koch and the company back both the program and the Obama administration's eligibility criteria. He said the company also would like to see Congress revise more laws to cut prison time for inmates who would have received shorter terms had they been sentenced today.

"Until there is a change in that legal process, we believe that everyone who meets the common-sense criteria set by the Department of Justice should be granted clemency," Holden said in the statement. "We do not believe that keeping these individuals in prison under these circumstances is just nor does it enhance public safety."

I am always pleased to see prominent folks like the Koch brothers, and others who talk prominently about the importance and virtues of freedom, bringing their message to the criminal justice arena and pushing for reforms. I am especially pleased to see Koch Industries prominently "throwing its weight around" in support of more federal clemency grants ASAP. That all said, though, I would really like to see the Koch brothers start prominently throwing some money around to engineer systemic changes to clemency procedures and politics.

Together, the Koch brothers are estimated to be worth $80 billion; a high-profile investment of just, say, .01% of these riches spent on creating and staffing what I might call a "Supernova Federal Clemency Institute" could and would go a long way to transforming the modern clemency conversation.  I am branding this suggested clemency effort on the kind of stellar explosion that briefly outshines an entire galaxy, radiating as much energy as possible before burning out: a "Supernova Federal Clemency Institute," especially if funded by just .01% of the Koch fortune ($8 million), would explode on the clemency scene and could burn very bright for the final 18 months of the Obama presidency.

With $8 million in resources (and perhaps more coming from others committed to personal freedom in the United States), the "Supernova Federal Clemency Institute" could hire and effectively compensate a staff of lawyers, researchers and advocates who surely could produce, perhaps in a matter of weeks, a robust list of meritorious federal clemency candidates.  This imagined "Supernova Federal Clemency Institute" also could work on rentry project for those granted clemency, could produce reports on best-practices in the states, and could make recommendations to the President and to Congress about how best to ensure federal and state clemency procedures are enduringly committed to helping "secure the blessings of liberty to ourselves and our posterity."  

June 2, 2015 at 01:29 PM | Permalink


Yes, I'd support a Supernova Federal Clemency Institute. To correct a systemic problem - over incarceration - we need a systemic solution. It needs to be bold.

To make any difference at all, President Obama has to exercise his exclusive Executive Power in a full throated manner. To paraphrase Hamilton: The benign prerogative of pardoning should not be fettered or embarrassed. So far - the actions of the executive have appeared to be both fettered and embarrassed.

My nightmare is that if there were a fully funded Supernova Federal Clemency Institute, those who staffed it would use the millions to bicker about criteria, set up a bureaucratic structure, mince and parse the wording about eligibility. These are symptoms of our current legal system. The runway is short for many nonviolent inmates with life without parole or defacto life sentences.

As far as the justice system is concerned these cases are closed. Clemency is the only procedure for sentencing relief. For most of them, there was nothing ordinary about the way they were prosecuted and they will not get relief in an ordinary way. Most of these sentences are the result of conspiracy charges and these offenders chose to exercise their sixth amendment right to trial. Their degree of guilt and the justice they received are a cruel myth.

Clemency for these citizens would be a statement about the injustice and fiscal irresponsibility of the war on drugs and the extraordinary power given to the prosecution through conspiracy charges and plea agreements.

The President has no rules about who he grants clemency to. He does not have to follow the rules of the Office of the Pardon Attorney. This is spelled out in the fourth paragraph of section 1-2.112 of the Standards for Consideration for Consideration of Clemency Petitioners, as well as in the Constitution.

Presidents have granted clemency prior to the end of legal redress and in some cases at the very beginning of the legal process. Some have been granted to individuals after their indictment prior to trial as well as while appeals are still pending.

I say get on with it. President Obama and the Justice Department have made this bold promise. We are now in the 18th month after the launching of Clemency Project 2014. Is it possible that this will just be another initiative that spotlights the dysfunction and incompetence of our justice system?

Posted by: beth | Jun 2, 2015 3:04:25 PM

Perhaps, they can also stop supporting any politician that worsens the problem by voting for tough on crime measures too. Seems a better approach in the long run to reduce the problems here as compared to using clemency to help a limited number ... eventually.

Posted by: Joe | Jun 2, 2015 4:20:25 PM

Joe, They have been out in force opposing tough on crime measures and advocating for repealing the egregious sentences that have made us the nation with the highest % of the population in prison.

We don't need clemency for a limited number, we need clemency for thousands. It should be a systemic solution and it is not unprecedented.

Posted by: beth | Jun 2, 2015 9:25:24 PM

The Koch Brothers have various interests and support tough on crime pols in various cases because the pols advance their economic interests. I appreciate broad clemency, but given the criminal complex in this country amount to over a million under control, even "thousands" here will only go so far. It is a limited after the fact solution.

Posted by: Joe | Jun 3, 2015 10:17:15 AM

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