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May 20, 2016

Suggesting we suffer from "under-incarceration," Senator Cotton calls federal sentencing reform "dead in this year’s Congress"

As reported in this Politico article, headlined "Sen. Tom Cotton: U.S. has 'under-incarceration problem'," at least one significant opponent of federal sentencing reform is already claiming victory in his efforts to preclude any legislative changes this year to any severe federal statutory mandatory minimums.  Here are the basics via Politico:

Sen. Tom Cotton on Thursday slammed his colleagues' efforts to pass sweeping criminal justice reforms, saying the United States is actually suffering from an "under-incarceration problem."

Cotton, who has been an outspoken critic of the bill in Congress that would reduce mandatory minimum sentences, smacked down what he called "baseless" arguments that there are too many offenders locked up for relatively small crimes, that incarceration is too costly, or that "we should show more empathy toward those caught up in the criminal-justice system."

"Take a look at the facts. First, the claim that too many criminals are being jailed, that there is over-incarceration, ignores an unfortunate fact: for the vast majority of crimes, a perpetrator is never identified or arrested, let alone prosecuted, convicted, and jailed," Cotton said during a speech at The Hudson Institute, according to his prepared remarks. "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."

Expanding upon his remarks during a question-and-answer session, Cotton said releasing felons under reduced sentences serves only to destabilize the communities in which they are released.  “I saw this in Baghdad. We’ve seen it again in Afghanistan," recalled Cotton, who served in the Army during both wars.  "Security has to come first, whether you’re in a war zone or whether you’re in the United States of America.”  Those advocating for criminal justice reform through such measures appear to have forgotten the high-crime days of the 1980s, Cotton remarked, noting that the federal prison population is declining....

"I believe the criminal-leniency bill in the Senate is dead in this year’s Congress. And it should remain so if future versions allow for the release of violent felons from prison," he went on to say. "I will, though, happily work with my colleagues on true criminal-justice reform — to ensure prisons aren’t anarchic jungles that endanger both inmates and corrections officers, to promote rehabilitation and reintegration for those who seek it, and to stop the over-criminalization of private conduct under federal law.  But I will continue to oppose any effort to give leniency to dangerous felons who prey on our communities."

Based on these comments from Senator Cotton (which can be read/seen via this link), I am now growing ever more inclined to agree with Senator Cotton's suggestion that a significant sentencing reform bill will not get through Congress before the 2016 election. Despite efforts to tweak the SRCA to appease some conservative critics, the most vocal opponents of the bill, Senators Cotton and Session, remain vocal in their opposition. In addition, as reported here, Senator Marco Rubio has recently expressed opposition to the SRCA. Perhaps most critically, I have yet to see anyone make a truly forceful political argument that any of the most critical current GOP leaders (namely Donald Trump, Mitch McConnell or Paul Ryan) ought to see great political benefits from now starting to aggressively champion federal statutory sentencing reform efforts.

That all said, I think some of the political calculations here remain fluid. It seems to me possible (though not likely) that the White House and/or leading Democrats might relent on opposition to mens rea reform, which could perhaps jump-start the stalled reform bills in the House of Representatives. Or maybe the even unpredictable Donald Trump will see some poll numbers suggesting he could improve his image with younger and minority voters by claiming he is better than the Clintons on criminal justice reform. And, not to be completely overlooked, it seems to me quite possible that lots of folks uncertain about the current national political mood on crime and punishment would feel comfortable moving forward on reforms during the lame duck period after the Nov 2016 elections.

All those speculations aside, I view Senator Cotton's latest comments as still further confirmation of my own long-standing fear that it continues to be much easier for all sorts of federal political actors to talk a lot about sentencing reform than to actually convert all the sentencing buzzing into actual federal statutory reforms. 

A few 2016 related posts:

May 20, 2016 at 01:08 PM | Permalink


Chris Geidner ‏@chrisgeidner 4h4 hours ago

Trump is going all Tom Cotton on the criminal sentencing changes being considered.

[Geidner also had about 60 tweets talking about the Oklahoma grand jury report on execution procedures]

Posted by: Joe | May 20, 2016 7:09:33 PM

Senator Cotton is a true American patriot.

On the Oklahoma thing, be careful what you wish for---N2 asphyxiation may be the way to go.

Posted by: federalist | May 21, 2016 9:33:38 AM

I agree with Cotton:

There are too few of the prostitution class known as Congress behind bars.

Posted by: albeed | May 21, 2016 4:49:14 PM

Federalist writes, "Senator Cotton is a true American patriot. " Some patriot. By writing his infamous letter to the Ayatollah, he violated the Logan Act. He should be prosecuted, convicted, and sentenced to prison. And so should the other 44 troglodyte Republicans who signed on.

Posted by: madame de farge | May 22, 2016 8:50:25 AM

Madame De Farge may have a point here. The Logan Act states as follows:

18 U.S.C. § 953. Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

1 Stat. 613, January 30, 1799, codified at 18 U.S.C. § 953 (2004).

It appears that Senator Cotton and his Republican fellow Senators have corresponded with officers of a foreign government (the Ayatollah) to "influence" Iran's attitude toward the Iran nuclear deal.

Why shouldn't Senator Cotton (and the other signatories) be indicted?

And, Federalist, how does writing such a letter make Cotton a "patriot" as opposed to a felon?

Posted by: observer | May 22, 2016 9:22:30 AM

Logan Act is a longshot:


Posted by: Joe | May 22, 2016 10:12:29 AM

Joe writes: "Logan Act is a longshot" Maybe so. But Cotton stabbed Obama and the country in the back--and makes love with the Iranian hardliners. Cotton is no patriot; by writing the letter he proved himself a traitor.

Posted by: anon | May 23, 2016 9:22:06 AM

Well, Cotton wasn't alone by a longshot in signing that letter.

"Traitor" to me is a bit too harsh, but I understand its broader symbolic usage. He isn't legally one.

Posted by: Joe | May 23, 2016 2:12:12 PM

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