Columns » Jay Barth

Cotton and crime

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TOM COTTON
  • TOM COTTON

The debate over what would be the sole consequential, bipartisan legislation of the first two years of the Trump presidency is underway in the U.S. Senate, and Arkansas's high-profile junior Sen. Tom Cotton has placed himself at the center of it. The FIRST STEP Act would significantly reform federal criminal sentencing in the country and has a real chance at passage because it pulls together an impressive coalition of left, right and libertarian politicians. But, Cotton, with an eye on a future presidential run, has taken a stand to stymie that progress.

The fascinating prison reform movement coalition has three branches — traditional liberals, libertarians and "woke" conservatives — that make it unique in American politics. The ACLU wing of the movement reiterates its concern, going back nearly five decades, that the War on Drugs has led to overincarceration; since the publication of Michelle Alexander's "The New Jim Crow," civil rights activists have increased focused energy around the topic, too. Libertarians — with the Koch brothers in the lead — see so many individuals in prison for drug crimes as an attack on freedom in two respects: the personal freedom of those incarcerated and the freedom of individuals and corporations that must pay taxes to fund the prison-industrial complex. Finally, and most interesting, are those more traditional conservatives who have been awakened on the subject, often by their own experiences in the criminal justice system. Prominent among this group is Pat Nolan, the former California Republican legislator, who spent 29 months in federal prison for accepting illegal campaign contributions and came out on a mission to reform the system. Similarly, leading the efforts for the Trump administration in the prison reform debate is Jared Kushner, whose own father spent 14 months in an Alabama federal prison camp for campaign finance violations, tax evasion and witness tampering.

A fairly modest FIRST STEP Act passed the conservative House of Representatives, but has become more expansive through negotiations in the Senate. At the moment, the legislation would do several things:

• It would make retroactive 2010 federal reforms that reduced disparities between crack and powder cocaine.

• It would ease mandatory minimum sentences in a variety of ways.

• It expands "good time credits" for prisoners without disciplinary infractions and makes these credits retroactive.

• Finally, it would allow inmates to also get credits for participation in rehabilitation and education programs that have proven impacts in reducing recidivism rates.

The legislation would have an immediate impact on thousands of prisoners in the system and promises to lessen incarceration rates even more moving forward. As conservative Sen. Mike Lee (R-Utah) puts it: "This bill would make the American people safer. This bill would focus our criminal justice and prosecutorial resources where they need to be."

Importantly, the law would affect only those prisoners held in the federal system (just under 200,000 total), but it would provide additional momentum for even more consequential reforms touching the nearly 2 million incarcerated individuals at the state and locals levels in the United States.

In recent weeks, Cotton (who, in 2016, said, "If anything, we have an under-incarceration problem") has made himself the voice of opposition to the legislation that must sneak through the Senate quickly if there is any hope of it becoming law this year. His goal is make it politically painful for his fellow Republicans to vote for the "criminal leniency bill" in its current form. In a National Review piece last week, Cotton argues that the list of programs that would provide inmates credits toward early release is too broad and that sentences for many dangerous crimes are not excluded (in his tweets, Cotton has focused on the hot-button issue of sex-related crimes), that mandatory minimum sentences for trafficking of fentanyl are reduced too much, and that Obama-appointed judges would be given too much discretion in sentencing.

With an ambition for the White House in the post-Trump era, Cotton is not a politician who naturally inspires passion. But, he is smart and knows that attaching himself to emotion-laden issues will help fill that void in his own personal demeanor. One of those issues, of course, is the debate over immigration reform, to which Cotton has dedicated significant energies and which is a topic naturally invigorating for Trump voters. Now, he is attempting to add being tough on criminals as a second punch as he imagines the Iowa stump speech of his 2020 or 2024 campaign.

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