Senator Cotton, Stop the Fearmongering Over Justice Reform

Congress is closer than ever to enacting sensible criminal justice reforms that would implement data-driven policies that will reduce recidivism and make our communities safer.

The Senate and the House already moved similar bills out of committee. House Speaker Paul Ryan has made it clear he wants a bill to move this year, while Senate Majority Leader Mitch McConnell is less decisive.

McConnell’s hesitance to bring the Senate’s criminal justice reform bill, the Sentencing Reform and Corrections Act, to the floor is largely a result of the incendiary rhetoric employed by a handful of Republican senators.

Senator Tom Cotton (R-Ark.) has emerged as the most vocal opponent of the bipartisan effort in the upper chamber, though his comments have been disingenuous and misleading.

The Sentencing Reform and Corrections Act is perhaps best described as a “good start” in addressing the policies that have led to the explosion in the federal prison population since 1980.

Between 1980 and 2013, the federal prison population grew by nearly 800 percent, from around to 25,000 prisoners to more than 219,000. Over the same period, the Federal Bureau of Prisons’ budget grew by nearly 600 percent, from $970 million to $6.7 billion, according to the Pew Charitable Trusts.

Recently, the Charles Colson Task Force, chaired by former Rep. J.C. Watts (R-Okla.), released a report on the federal corrections system. The task force was charged with analyzing the drivers of the dramatic rise in the federal prison population and high rates of recidivism, and to provide recommendations to address these issues and more. The task force determined that lengthy prison sentences for drug and firearm offenses are the main drivers of the increase.

The report also pointed out that the federal government has lagged far behind the states. Over the past several years, states — led by Texas, Georgia, South Carolina, and others — have changed their approach to sentencing and corrections by focusing on drug treatment as an alternative to incarceration and in-prison programming designed to reduce recidivism and enhance public safety.

“The vast majority of federal sentences (90 percent) incorporate a term of incarceration, and most judicial districts do not operate specialty courts or offer front-end diversion from prison,” the report explained. “It is a one-size-fits-all model, and it contrasts starkly with the states, where policymakers are reducing both costs and crime through heavier emphasis on evidence-guided correctional approaches tailored to the risk and need profiles of each individual.”

The Sentencing Reform and Corrections Act offers very modest reforms to sentencing policies by creating a “safety valve” exception to mandatory-minimum sentences for nonviolent drug offenders. It would also direct the Department of Justice to conduct risk assessments of prisoners, who, upon completion of programs designed to reduce recidivism, would be able to earn time credits that would allow them to spend up to 25 percent of their sentence in home confinement or a halfway house.

The states have seen tremendous success with similar reforms.

In 2012, facing $264 million in costs to expand prison capacity, Georgia, under the leadership of Republican Gov. Nathan Deal, adopted the first in a series of sensible criminal justice reforms, including a safety valve for low-level, nonviolent drug offenders and in-prison rehabilitative programming to reduce recidivism. As a result, the state’s prison population declined, expected prison costs were averted, recidivism rates dropped and public safety was enhanced.

Conservative senators such as Mike Lee (R-Utah), Tim Scott (R-S.C.), and Senator Rand Paul (R-Ky.) see the success of these reforms and are working to bring them to the federal level. Stubbornly, Cotton refuses to listen to reason.

Cotton is not only opposed to the Sentencing Reform and Corrections Act, he recently blocked action on reauthorization of the Juvenile Justice Delinquency Prevention Act because he thinks young people who are “status offenders” — crimes that are only crimes because of the offender’s status as a minor, such as truancy and curfew violations — should be subject to detention.

Apparently, the junior senator from Arkansas has never seen the documentary Kids for Cash and learned of the damage that detention can do to the still-developing juvenile mind.

Cotton and a handful of other senators have taken aim at two provisions of the Sentencing Reform and Corrections Act that would make changes to 18 U.S.C. § 924(c) and 18 U.S.C. § 924(e), which, theoretically, allow sentencing enhancements for recidivist violent offenders.

In practice, though, the two statutes have been used questionably. Sentencing enhancements allowed by 924(c) have been used to prosecute first-time offenders, such as Weldon Angelos, who, on three occasions, sold roughly $1,000 worth of marijuana to an undercover officer while in possession of a legally owned firearm, though he never brandished or pointed it.

In 2004, Angelos was sentenced to five years for the first gun charge and 25 years each for the two other charges. The sentences were stacked, meaning that Angelos would have to serve 55 years in federal prison. Now-retired federal Judge Paul Cassell, who presided over the case and handed down the sentence, has since become an advocate for Angelos.

“If he had been an aircraft hijacker, he would have gotten 24 years in prison. If he’d been a terrorist, he would have gotten 20 years in prison. If he was a child rapist, he would have gotten 11 years in prison,” Cassell said in February 2015. More recently, Cassell, who was appointed to the bench by President George W. Bush, penned a letter urging President Obama to commute Angelos’ sentence, of which he has served 12 years.

The other provision, 924(e), which is part of the Armed Career Criminal Act (ACCA), is so fundamentally flawed that the now-deceased Justice Antonin Scalia called it a “farce playing in federal courts throughout the nation.” Scalia wrote the majority opinion in Johnson v. United States, which struck down the “residual clause” of ACCA because its vague and broad wording violated due process.

The Sentencing Reform and Corrections Act would reform these two laws to bring about more just and appropriate sentences, while still reserving harsh punishments for truly violent recidivist offenders. The changes would be made retroactive, though those eligible would have to go back to court and meet criteria to prove that they are not a danger to their communities.

Cotton and others in the Senate who are opposing this bill are trying to play on people’s fears. They may be able to get these two particular provisions out of the Sentencing Reform and Corrections Act, but the criminal justice reform movement is not going away.

While Congress has lagged behind, the states have proved that criminal justice reform — through changes in sentencing policies, the implementation of programs to reduce recidivism, and re-entry programs — works and protects the public.

The stars are aligned to get something done, which is why organizations, left and right — including FreedomWorks, the Faith and Freedom Coalition, Americans for Tax Reform, the ACLU and the Center for American Progress — have come together under the U.S. Justice Action Network to support this effort to reform the federal criminal justice system, reduce costs on taxpayers and enhance public safety.

Jason Pye is the director of communications for FreedomWorks. Follow him on Twitter at @pye.

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