A Discussion on Criminal Justice Reform with Mark Holden

Bill Keller and Mark Holden a Smart on Crime
Bill Keller and Mark Holden speaking at Smart on Crime

Last week was the first time I heard Mark Holden, the senior vice president, general counsel, and corporate secretary of Koch Industries, Inc., speak about criminal justice reform. He was interviewed by Bill Keller, the editor-in-chief of The Marshall Project, during a session titled, “A Conversation on State Progress,” at the Smart on Crime summit hosted by John Jay College of Criminal Justice, The Center for American Progress, and Draper Richards Kaplan Foundation.

Mark’s empathy for those trapped in the criminal justice system was evident immediately. While I’ve long been generally familiar with Koch’s work in this space, as Mark spoke avidly about his and Koch’s specific efforts to reduce this nation’s mass incarceration, I took notes and wrote down several follow-up questions that came to mind and Mark was kind enough to answer them for me after the summit was over. I so enjoyed our conversation and learning more about Koch’s work and how Mark fell into it that I asked if I could share our conversation on this blog, and he agreed.

Q1. There were several things that struck me during your session at Smart on Crime, one of which was when you mentioned the importance of family and community and the difference yours made in your life as compared to the kids in your neighborhood who ended up caught in the justice system. Can you elaborate on this and how you support programs that promote family involvement and healthy communities?

A1. At Koch, we support different types of groups in the communities. A notable example of this is Rise Up for Youth in Wichita, Kansas. The two people heading it up are formerly incarcerated. The purpose of the nonprofit is to keep children out of similar situations, and the program has had amazing success. A lot of the kids in this program have parents who aren’t around or are incarcerated. Being part of this program has changed the trajectories of their lives for the better. The kids in the program end up going to college or technical college and aren’t getting pregnant before they graduate from high school.  Koch also funds Big Brothers Big Sisters of America groups among several community-based programs.

Q2. Can you speak to your personal background and how you fell into criminal justice reform work?

A2. I grew up in Massachusetts and, after high school, I worked in a prison as a prison guard. It was a job that paid $6 per hour, which was a lot of money back then that helped me pay for college tuition at UMass. Prior to this job, I worked at a grocery store and in a mattress factory. After being a prison guard, I had several other jobs such as a night watchman and as a janitor in a plastic factory. I decided to go to law school and went to Catholic University Law School. During this time, I clerked in law firms in Washington, DC, and then in Phoenix, Arizona. After law school, I worked on labor and employment litigation at a private law firm in Washington, DC.

It was this experience in labor employment that led me to join Koch in 1995 based in Wichita, Kansas. While at Koch, I worked on a federal criminal case brought against a Koch subsidiary and four of our employees. Though the case was ultimately dismissed due to a lack of evidence of wrongdoing, it resulted in other positive outcomes at Koch, which included improvements in our compliance programs, the establishment of more productive relationships with regulators, and a desire to reform the criminal justice system. During the case, we discovered what appeared to be tampering of a key piece of exculpatory evidence in the grand jury process. In 2006, Koch began focusing on criminal justice reform and my own personal and past professional experiences played a role in my taking an interest in the company’s reform efforts. We advocated for the justice system to be evidence and data based and to focus on public safety, equal rights, and second chances. We also advocated for drug addiction and mental illness to be treated as public health issues, and not as criminal issues. The War on Drugs has been counterproductive, and we do a lot of work with other justice reform advocates to address our over reliance on mandatory minimum sentences, especially for nonviolent and low-level offenders. I can’t stress enough the importance of working through the entire justice system, from the front end to the back end of the system, to increase public safety, provide equal rights, and give the formerly incarcerated a real second chance in life after paying their debt to society.

You also mentioned during your session that we use the criminal justice system to deal with all types of social problems which has had significant financial impacts. For example, you point out that we spend far more on our prison system than on our schools. I couldn’t agree more. For me, it goes back to criminalizing social and public health issues, and when someone is labeled a “criminal,” it affects how that person views himself/herself and, of course, how society views them. Labeling and the use of negative language can have a huge impact.

Q3. My question for you based on all of this: What do you think about the language we use in the justice system and how would you propose we change this?

A3. I have to quote Bryan Stevenson and his book, Just Mercy: A Story of Justice and Redemption. “Each of us is more than the worse thing we have ever done,” he wrote. If we truly believe in redemption, we won’t use language that focuses on that worst thing someone has ever done. You don’t use “ex-cons” if you are in this movement. We used to say “criminals,” “ex-cons,” “ex-offenders,” and now we use “formerly incarcerated” or “returning citizens.”

Koch hired people with criminal records before we “banned the box” on our employment application in 2015. Our passion and vision for these reforms is driven by Charles Koch, who understands how the criminal justice system makes life more difficult for people who need a second chance. Advice to employers: Do your due diligence and look at all factors when hiring. As a society, we have over-criminalized so much behavior that it can lead employers to ignore individuals who can be good employees. And in turn, these people oftentimes lose opportunities as soon as they have to disclose they have a criminal record. We look to hire the best people for the job period, and we don’t overly fixate on one data point. You always need to do your due diligence in hiring, regardless of whether the applicant has a record or not. We always prioritize safety in our hiring practices. We have found that individuals with criminal records can be valued and productive employees if they are given a chance. Indeed, some of them have been great contributors to our company. With one in three adults with criminal records in the USA (that is as many people with records as college degrees), it is shortsighted from a business perspective, in our opinion, to refuse to even look at a third of the potential applicant pool. Also, with regard to policymakers, I believe they should visit a jail or prison before making policies or passing laws that affect those in prisons and those returning from prison. I have learned when you see the people who are in our prisons and hear some of their stories, it changes your point of view on more punitive measures. This is all part of what Bryan Stevenson calls being “proximate” to the issue.

Q4. Would you share any thoughts you have on how to take social and public health issues out of the justice system?

A4. With an estimated 6,000 federal criminal laws and around 300,000 federal criminal regulations, we need to end overcriminalization of minor issues that don’t threaten public safety. These issues are better dealt with through regulatory or civil remedies. We should not over use the justice system for every issue that arises in our society. Every part of the system needs to be reformed, from laws that are passed to asset forfeiture to bail reform based on risk factors and not on resources of the accused, to a failure to provide effective lawyers for individuals who can’t afford a lawyer, which violates the Sixth Amendment constitutional right to counsel. We also need sentencing reform and prison reform, which must include rehabilitation programs for individuals while in prison and upon release. Consistent with public safety, reforms also need to be focused on reentry reform and scaling back the 40,000 to 50,000 collateral consequences of a conviction that deprive returning citizens of a real second chance. This is driven by one size fits all laws and regulations that prevent people from certain occupations, housing, loans, voting, and educational opportunities. This often leads to individuals returning to prison within a few years because they can’t make a living or have a productive life. We need to focus on breaking the cycle of poverty, crime, and incarceration and try to keep people away from the justice system if possible. We have started a reentry program called Safe Streets & Second Chances along with the Texas Public Policy Foundation, the Charles Koch Foundation, and Florida State University. We have pilot programs in Texas, Kentucky, Florida, and Pennsylvania. Our goal is to have reentry begin day one of incarceration and hopefully reduce recidivism, which is a major driver of crime and increases prison populations.

Those who reenter society should have all of their rights restored unless there’s a public safety reason for not doing so. We support Amendment 4 in Florida that will restore voting rights for those who have paid their debts to society. If we don’t treat returning citizens as if they are full-fledged citizens, we shouldn’t be surprised if they end up back in the system.

At the federal level, we support the FIRST STEP Act, which focuses on prison reform and how the system treats low-level nonviolent offenders. We also believe that if we are serious about giving people second chances and rehabilitating them, we should put the Federal Bureau of Prisons (BOP) under the U.S. Department of Health and Human Services. Currently, the Department of Justice (DOJ) oversees the BOP. Given that DOJ is the agency that enforces the law and prosecutes people, it does not seem to be the best suited for overseeing rehabilitation.

States like Texas and Georgia have proved you can reduce incarceration rates and reduce crime rights at the same time. In the past decade Texas has closed eight prisons, saved four billion dollars’ worth of taxpayer money, and has a crime rate that hasn’t been this low since the 1960s. This is smart on crime and soft on taxpayers.

These reforms free up resources for other needs, such as education programs. For example, we currently spend three to four times more per capita annually on incarceration than we do on K-12 education in this country. We need to change that dynamic.

I enjoyed speaking with Mark about his passion for and career working to reduce our jail and prison populations, foster healthy citizens, reform the entire spectrum of the justice system, and provide opportunities to local communities.

In his paper, “The Second Chance: A Movement to Ensure the American Dream,” he writes about the collateral consequences that follow those who come out of prisons and have paid their debts to society. What resonated with me in speaking to him and reading his paper is his argument that if we take these issues and put them where they belong, i.e. public health or education, and we get rid of labeling, we automatically reduce incarceration and get rid of collateral consequences. And for those who do come into the system, we have to make sure there are enough resources for effective public defense. Once our prison population is reduced, rehabilitation programs upon release also become more manageable.

Like many, we at the Justice Programs Office work towards reducing mass incarceration, and our place in this is more on the front end of the system. We look at the decision points that lead someone to jail or prison. We passionately work on pretrial reforms, ensuring the right to counsel, and strengthening diversionary programs such as drug courts, specifically juvenile and veterans treatment courts.

I would like to thank Mark for taking the time to speak with me and look forward to working with him to ensure some of the reforms we talked about become a reality.

Preeti Menon is the Justice Programs Office’s senior associate director and project director of the National Drug Court Resource Center. She is also the former project director of the Right to Counsel National Campaign