OPINION: Tom Cotton Wants To Maintain A Dangerous Status Quo

Joe Luppino-Esposito | Contributor

Telling someone to “read the bill” is an odd admonition — it suggests that the requester knows about something nefarious hiding in the text that has yet to reveal itself. But in Arkansas Sen. Tom Cotton’s case, he uses that admonition in a recent column to cherry-pick a few lines from the First Step Act in order to take them out of context or completely misrepresent them. His zeal to destroy this criminal justice reform bill — one created by conservatives, negotiated by conservatives, and supported by conservatives — is unmatched. His motivation, however, is not clear, because if we followed Cotton’s suggestion and rejected this bill, America will be no safer.

So let’s read the bill, as it’s actually written.

First, it is important to define the terms as they are, not as Cotton alludes to them. Not once does he ever define what “early release” means. One could misunderstand that to mean the much-feared and fear-mongered “jailbreak.” In the bill, this is something very different.

If you read the bill, you would be hard-pressed to find “time credits” defined, though Cotton insists on using that term. That’s because it is a system of “earned time.”

Prisoners who complete recidivism-reducing programming based on a comprehensive risk and needs assessment, can build up “earned time” towards prerelease custody, but only if the prisoner can maintain a low- or minimum-risk level. This does not end his sentence and release him, unsupervised, back into society. In no way can this be construed as “early release” by any definition of the words.

Depending on the offender and his risk and needs, prerelease custody may take the form of a halfway house, home confinement, or supervised release, all three of which involve varying but significant supervision from law enforcement. These options already exist in the federal system and are regularly done as part of the reentry process for federal prisoners. The First Step Act incentivizes prisoners to get the rehabilitation they need to become productive citizens by offering more time in this prerelease custody.

It doesn’t take a thorough reading to catch a pattern here — Cotton would rather you not read the bill, lest his talking points be exposed to be in conflict with reality.

But once you are done reading, I would urge you to look outside the four corners of the bill to understand what is at play here. The federal system is quite unlike the way  Cotton describes it: “Frankly, there are almost no low-level, non-violent offenders in federal prison, as opposed to state prison, to begin with.” Frankly, this is false.

The latest numbers show that 46.1 percent of federal inmates are being held for drug offenses 9nearly half of which reside in the lowest criminal history category). Homicide, Aggravated Assault, and Kidnapping Offenses make up 3.3 percent; Sex Offenses, which may include non-violent (though still despicable) offenses such as child pornography, total 9.7 percent; and the broad category of Weapons, Explosives, Arson equal 17.9 percent.

Compare that to the state systems, where roughly 54 percent are in prison for violent offenses, 18 percent for property offenses, 15 percent for drug offenses, and 11.5 percent for public order offenses. The Senator need not look past his home state, where the Arkansas Department of Corrections reported in 2017 that the incarcerated population is split with 56 percent serving time for violent offenses and 44 percent for non-violent offenses.

Cotton also puts forth an alarming proposal for his rejection of the bill: “And to the extent people are in federal prison for low-level convictions, they typically pled down from more serious charges.”

There are two flaws in this claim. The first is an insult to US Attorneys: Rather than following DOJ policy of prosecuting for the most serious provable offense, they instead opt to plea down dangerous individuals? For what purpose?

Alternatively, is the Senator from Arkansas suggesting that our criminal justice system ought to treat individuals as guilty of crimes they have not been convicted of? While he tries to lay claim to the conservative mantle, I know of no conservative who would so gladly embrace a rejection of due process.

This is not how the criminal justice system works.

Though Cotton tells us to “read the bill” I will urge you to read between the lines. If Cotton has his way, we are left with two options for the federal criminal justice system. First, we can maintain the status quo — hold prisoners in a risk-agnostic system for long sentences while providing insufficient rehabilitative programming, limit their transition time, and hope for the best. We would wind up with the continued poor results. This is no way to run a prison, knowing that over 95 percent of federal prisoners have sentences with an end date.

Second, we can simply incarcerate all guilty individuals for life sentences. This seems like a flippant charge, but it is the only logical conclusion from what the senator has said in the past. “Law enforcement is able to arrest or identify a likely perpetrator for only 19 percent of property crimes and 47 percent of violent crimes. If anything, we have an under-incarceration problem.” There is no correlation here, let alone causation. There isn’t even a rational explanation that a reasonable mind can fathom — expect that Cotton would have us lock up as many people as possible and never release them.

No one in prison is redeemable — this is Cotton’s starting position. He freely admits that from his view, liberty comes second to safety, redemption is impossible, and danger lurks around every corner.

The answer to the struggle of increasing public safety is not unrealistic cynicism, but rather a nuanced approach that focuses on working with this quite-literal captive audience of federal inmates to ensure that these individuals do not commit new crimes at the end of their sentence. If we follow Tom Cotton’s approach to criminal justice, it will be a self-fulfilling prophecy of more crime and criminals who leave the federal prison system worse off than when they entered.

Joe Luppino-Esposito (@Avgjoele) is the director of Rule of Law Initiatives at the nonprofit Due Process Institute.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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