Cotton has made headlines in recent weeks for
opposing prosecutors, district attorneys, the
Fraternal Order of Police, a former federal prosecutor-turned-senator, Christian groups, Republican governors, libertarians, the Koch brothers, fellow Republican senators and even Donald Trump. At question is the FIRST STEP Act, which all of the above agree would make America safer by refocusing the criminal justice system on rehabilitation in addition to punishment.
Cotton disagrees — and he is willing to brandish outlandish claims without evidence to derail the growing bipartisan momentum to pass the bill.
The FIRST STEP Act
boils down to two pieces. First, it would make sure future sentencing guidelines reflect current law and provide small clarifications. Second, it would introduce new steps to reduce crime. It does so by giving incarcerated people incentives to participate in programs proven to reduce recidivism — going back to jail after you have already served a sentence — by allowing them to earn credits that can be used toward securing a transfer from prison to pre-release custody, such as a halfway house or home-monitoring.
Only those incarcerated people who are eligible could earn credits. And even those people would not be released freely — they would simply get to serve some of their remaining time under supervision. That means incarcerated people would return home to families and escape the danger and isolation of the prison system. Meanwhile, America would not have to pay to incarcerate them — and would instead reap the benefits of less crime and stronger families.
Cotton, unfortunately, appears to have scoured the crime-reducing bill looking for anything he could take out of context — and then started fear-mongering about it. No wonder he has drawn a rebuke from fellow Republican Senator Mike Lee, who
described Cotton’s claims as “100% fake news.”
There are four possible explanations for Cotton’s opposition:
1. He misunderstands current law.
Cotton keeps
confusing small clarifications to current law with sweeping new changes. For instance, the FIRST STEP Act fixes a calculation error that allows incarcerated persons to earn only up to 47 days of early release for good conduct, instead of the 54
intended under the law. Current federal law gives judges discretion to reduce sentences for those with little to no criminal history who cooperate with prosecutors. The idea that any of this act would hurt the rule of law or will release dangerous criminals is nonsense.
2. He misunderstands the bill itself.
Cotton makes claims that are
easily proven wrong by the bill itself. For starters, only some incarcerated persons are even eligible for recidivism credits. (Ironically, this fact galls many would-be supporters on the left, who want a bill that helps a broader range of incarcerated people.) The bill categorically rules out people who are convicted of certain crimes, and it includes only those with a low risk of recidivism upon release.
The legislation also gives prison wardens and the Department of Justice authority to decide what counts as a recidivism program based on clear data that shows it reduces crime. On top of it all, wardens still get to decide, using evidence-based criteria, who is eligible for home monitoring. No wonder Sen. Lee
encouraged his colleague to “read the bill.”
3. He has a severe allergy to facts.
Some of Cotton’s claims are laughable; for instance, he says there have been no hearings on this bill. In reality, the House version of the bill was voted out of committee after
multiple hearings; over the past few years, the issues that the bill addresses have been thoroughly debated in both the House and Senate. Cotton somehow missed this. He ignores that assessing an incarcerated person’s propensity to commit further crimes is an everyday part of a prison official’s job; instead he claims bureaucrats would
soon be judging “the state of a felon’s soul.”
He loves the talking point that the bill would aid fentanyl dealers. But as Sen. Lee
points out:
“The Sentencing Commission tells us that, in 2017, 56 people were sentenced pursuant to those mandatory minimums, and that the average sentence for those offenders under our bill would be 211 months — or 17 years and seven months in prison. Not exactly soft on crime. … Cotton apparently believes inmates will be able to participate in (programs that allow them to earn credits) every single day of their sentence. But that is highly unlikely to actually happen, and there’s a limit to how widely available these programs are.”
4. He simply prefers fear-mongering to facts.
Sadly, this could explain all the issues touched on above. Cotton has focused on the most sensational crimes, like sexual violence, while ignoring all the built-in safeguards that make people convicted of such crimes ineligible to earn credits. There is a long — and quite bipartisan — history of politicians stirring up voters’ fears to justify imprisoning more people under worse conditions. The problem is that none of these approaches help incarcerated people change their lives — nor do they make communities safer.
As
mountains of evidence — and the examples of red states like Texas and Georgia — point out, reforms like the FIRST STEP Act cut costs, reduce crime and improve public safety. The point of a criminal justice system should be to prevent crime through a combination of rehabilitation and punishment. Backward thinkers like Cotton appear to think the goal is to bankrupt us by imprisoning as many people as possible for as long as possible, while ignoring opportunities that would decrease the likelihood that many of those people commit crimes again upon release.
Fortunately, Cotton is on the wrong side of forward-looking Republicans, the facts, bipartisan momentum and the weight of history. I only hope his scare tactics do not ruin the potential for life-changing, crime-reducing reform before his errors become clear to everyone.
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