Kochs, Chamber of Commerce Bankroll Judges’ Seminars On Corporate Crime And Capitalism

The Louisiana federal judge overseeing the civil trial over BP’s alleged gross negligence in the 2010 Deepwater Horizon incident attended a seminar in 2009 called “Criminalization of Corporate Conduct” sponsored by the American Petroleum Institute, the U.S. Chamber of Commerce and 13 other funders. In 2011, that same judge dismissed a wrongful-death claim in a suit brought against ExxonMobil and Chevron USA for exposure to radioactive substances. Another judge who attended that seminar voted in a 2-1 holding to reject emissions caps that both the American Petroleum Institute and the Chamber had opposed in briefs in the case.

In all, 11 percent of U.S. federal judges attended all-expense paid seminars whose top contributors included conservative foundations and major corporations between 2008 and 2012, according to an analysis by the Center for Public Integrity. Sponsors often pay for participants airfare hotel stays and meals. Tim Meko reports:

Leading the list of sponsors of the 109 seminars identified by the Center were the conservative Charles G. Koch Charitable Foundation, The Searle Freedom Trust, also a supporter of conservative causes, ExxonMobil Corp., Shell Oil Co., pharmaceutical giant Pfizer Inc. and State Farm Insurance Cos. Each were sponsors of 54 seminars.

Other top sponsors included the conservative Lynde and Harry Bradley Foundation (51), Dow Chemical Co. (47), AT&T Inc. (45) and the U.S. Chamber of Commerce (46), according to the Center’s analysis.

It is not just the sponsorship of these seminars that creates at least the appearance of a conflict. Many of these seminars are outwardly devoted to addressing corporations’ liability and/or economic theories. For example, a seminar called “Corporations and the Limits of Criminal Law.” was funded by AT&T, BB&T, BP America, Cigna, Coca-Cola, Dow Chemical, FedEx Corp. and others. Another called “The Moral Foundations of Capitalism” was funded by that same group of sponsors and the Chamber of Commerce. A host of others are generally themed around economics and tort liability.

Outcry about these all-expense paid judicial education programs was louder before 2007, when the body that oversees judges started requiring judges and seminar hosts to disclose information about their programs. As a result of these disclosures and the work of the Center for Public Integrity, we now know that conservative groups and corporations with a stake in major litigation are bankrolling these junkets. The new rule, however, does not require disclosure of how much each entity contributed.

Aside from contributions to particular seminars, the Center’s reporting traces millions of dollars more in contributions to two schools that host the bulk the majority of these seminars.  It found that ExxonMobil reported “giving $20,000 to George Mason specifically for its judicial training program. The oil company gave an additional $30,000 to the university’s Law & Economics Center, which hosts the conferences. Between 2003 and 2007, the ExxonMobil Foundation gave the think tank $150,000.” The Charles G. Koch Charitable Foundation has also contributed millions to George Mason University, and other foundations and corporations contributed hundreds of thousands of dollars to George Mason’s judicial education program and a similar program at Northwestern University. One major sponsor of these programs known for its corporate-influenced program ceased holding seminars on 2011.

Not every seminar fit into this category. The Open Society Foundation and the Robina Institute, both of which have social justice missions, sponsored one seminar — on human rights and international law. CPI has an excellent tool for viewing all contributions by seminar, judge, sponsor, and several other factors here.

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Supreme Court Reconsiders Allowing Judges To Increase Sentences Without Jury Approval

Among the major contributors to the U.S. incarceration epidemic are harsh schemes for sentencing, and some of the most disproportionate sentences come about as a result of statutorily mandated minimum sentences.

Just last week, a former medical marijuana distributor who declined to plead guilty was sentenced to a ten-year minimum prison sentence by a federal judge who said, “the court’s hands are tied.”

But for some defendants, being sentenced to the mandatory minimum prison term for the crime of which they are convicted is just the tip of the iceberg. Judges may also use their discretion to add additional time up to a maximum allowable sentence. A case before the U.S. Supreme Court today considers the scope of that discretion when judges decide unilaterally that the defendant committed acts other than that for which they were convicted.

Allen Alleyne was convicted for robbing a convenience store owner as he drove to make a bank deposit. The jury found Alleyne guilty of both having committed the robbery, and having used or carried a firearm. They acquitted him, however, of brandishing a firearm during the crime.

Nonetheless, in sentencing Alleyne, the judge independently found that Alleyne should have known his accomplice would brandish a firearm during the robbery – a finding that added two additional years to Alleyne’s  sentence above the mandatory minimum of five years. Unlike a jury, which is tasked with finding guilt “beyond a reasonable doubt,” the judge made this finding under the much lower standard of “preponderance of the evidence.”

It is easy to view Alleyne and his accomplice as serious criminals who may very well deserve to serve either a five or a seven-year sentence. But allowing a judge the discretion impinges on a criminal defendant’s constitutional right to a trial by jury. The U.S. Supreme Court has already ruled that a judge cannot use this discretion to increase a defendant’s sentence above the maximum allowable sentence. And a similar rationale prompted a controversial but landscape-changing decision to limit the enforceability of federal sentencing guidelines.

Although the severity of statutory sentencing schemes has led to grossly unjust results, particularly in drug crimes, their purpose was and is to limit the variability and bias that can be introduced by any given judge in imposing a criminal sentence. Letting judges make factual determinations that are the purview of the jury undermines this goal – and allows for the sorts of even longer prison terms that have contributed to our ever-bloated prison population.

Somewhat surprisingly, the U.S. Supreme Court agreed to hear this case on the argument that an earlier high court decision on just this issue was wrongly decided. With four new justices since the 2002 decision and Justice Stephen Breyer on the fence, the Supreme Court now has a second chance to get it right.

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