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August 24, 2018

A true insider's reaction to Senator Cotton's commentary about federal criminal justice reform efforts

In prior posts here and here and here, I noted the commentary from Senator Tom Cotton attacking the federal criminal justice reform bills moving through Congress and some responses it has engendered.  Today I receive an email from the son of a federal prisoner who maintains this interesting blog with postings from his father.   The blog is worth checking out and it is titled "Blue Collar Criminal: 60-something small business owner.  Screwed by the DOJ.  Now I'm in prison.  These are my thoughts."

In addition to pointing me to this blog, the prisoner's son shared his father's response to the piece Senator Cotton wrote in the Wall Street Journal and gave me permission to reprint his father's writings here:

I write this response to Sen. Tom Cotton's editorial ("Reform the Prisons Without Going Soft on Crime") from within my 8 X 10' federal prison cell I share with another medicare-eligible inmate.  We agree that Cotton's essay should have been entitled - Reform the Prisons Without Doing a Damn Thing.

Cotton bases a lot of his assertions on statistics. In lieu of rebutting them, which would be a bit hard given my current lack of access to the internet, I have to settle on "inferior" data, which is the actual experience of actual prisoners whom I know, and find every bit as credible as anyone I knew on the "outside".  The specific ones I'm bouncing Cotton's preposterous claims off of, are guys with 10+ years of incarceration, and who have experienced a wide variety of federal prisons before working themselves down to the federal camp.  Though I've only been "down" one year, I find my bullsh*t detector is pretty reliable, and comes in handy when evaluating prison stories and reading editorials such as Cotton's.  Based on these findings, I not only doubt the factuality of the statistics he uses, I gravely mistrust the motives behind them.

I came here a big fan of Sen. Cotton's.  I first knew of him when he was a soldier, serving in Iraq, who was thought for awhile to be fictitious, due to the cognitive dissonance produced by the idea of a Harvard Univ./Harvard Law School grad being an infantry officer. I was very attuned to him, since my son was also in Iraq at the same time.  He also put his pen to good use in rebutting anti-war propaganda.  I was shocked, when my "adventure" with the DOJ brought me here, to find that Cotton, along with another of my conservative heroes - Sen. Jeff Sessions - were regarded as the mortal enemies of federal inmates, at least those who followed the progress of issues related to prison reform.  My move away from fanhood has been sealed by this editorial, which has impressed me that he's traded the tools of war for the tools of sophistry.

For starters, in Cotton's mind, we are all "criminals", a word he loves to repeat. One-size-fits-all.  Excuse my sensitivity, and I leave it to friends and family to defend my name, but many of these guys are as fine individuals as any I know, and were "productive, law-abiding citizens" until the feds came after them.  (If you find that hard to swallow, you might care to read Harvey Silverglate's 'Three Felonies A Day'.)

He calls the House bill "flawed", and to the extent that it tampers with mandatory minimum sentences, or gives judges more discretion, a prescription for a "jailbreak". Why is lengthening a sentence wise, but shortening some foolish?  Why is Cotton incapable of recognizing that prison populations are comprised of both truly dangerous, bad-guy criminals, and nonviolent, non-dangerous law-transgressors (including some who are truly and factually innocent)? Many of the guys I know in here would probably only "endanger communities" by cutting their neighbors lawn while they're on vacation.  (And I'm not here making a distinction between "white-collar" and "drug offenders".  I've learned that 'drug offender' is also not a one-size-fits-all category).

In his paragraph on the current "drug epidemic", he cites a number of statistics to justify mandatory minimum sentencing, but ends by essentially admitting those statistics might not be significant or prove his point.

His statements about how very little of recidivism is attributable to parole violation, does not purport with what I've seen nor the experience of my "experts".  Most of the guys in my unit who have prior convictions are here now because their parole officer caught them 'high'.  One guy here, a farm boy, had a prior drug felony, and "caught" an 8 year sentence for a felony firearms crime.  He was deer hunting in a tree stand, having lost his right to bear arms by virtue of being a drug felon. Cotton's statistic to prove that drug convictions lead to rearrests for murder and rape 77% of the time, strikes my fellow inmates as not only false, but weird, crazy scare tactics.

Cotton's cherry-picked example of a drug dealer, Wendell Callahan, who murdered his girlfriend and her daughters, is great for demagogic purposes, but irrelevant to the debate of shortening the eligible sentences of nonviolent felons.  This has to be weighed in a context that looks objectively at good outcomes as well as negative.  Keeping families apart, and depriving children of their fathers, when its not necessary for the public good, is a social evil; and this is what mandatory minimum sentences often do.  It leads to and insures that the next generation will likely repeat the mistakes of their parents.

Cotton attacks even the term "mass incarceration" on the strange basis that it couldn't possibly be big, since it could be bigger.  I would say simply, that whichever country incarcerates the highest percentage of it's citizenry deserves the title of "mass incarcerator".  This would be the United States.  One book I've read states that the U.S. incarcerates 6 to 12 times more than the following countries: Canada, U.K., France, Germany, Italy or Australia.  Yet Cotton thinks we don't lock up enough.

But it gets worse. Cotton writes that "virtually no one goes to federal prison for "low-level, nonviolent" drug offenses.  Even I, a relative newbie, know guys who are not only here for that, but have sentences exceeding 10 years.  He says those that are here for just that have only pleaded to that, though they actually committed more serious offenses. Baloney.  Here's how that goes - they commit a crime deserving 1 year (for example) and plead "down" to a 4 year sentence, because they're being threatened with a 12 year sentence.  My friends here can't believe that Cotton doesn't know this.

It's not unusual for the feds to concoct 20 charges, and settle for 2. It happens to everyone.  It happened to me.  They are extremely creative in their use of enhancements.  (If the real crime were so heinous, why would they settle for a much lighter sentence?)

And then this - "Presidential pardons are a much better instrument of justice than broad sentencing reductions." Puh-leeze! (I think this ridiculous statement was just a set-up for his snarky shot at Trump.)

Cotton dismisses fiscal conservatives who would hope to reduce the cost of the American prison system. "The costs," he says, "of crime ... far outweigh the downsides of putting serious criminals behind bars."  That all depends on what you consider to be "serious" criminals, and how you calculate the "downsides".  At my camp, the common consensus is that the average age here is 50+.  That includes quite a few in their 70s, and about 3 or 4 in their 80s. Maybe a dozen use canes.  The financial distress on families and the negative economic impact on communities would certainly be part of the calculation of the "downsides", as would unquantifiable costs such as the loss of adult children to care for aged and debilitated parents.  Certainly also there's a tremendous cost to communities who have lost key employees and employers, volunteers to non-profits, etc.  There's a 80 yr old oncologist/researcher who's here due to a financial transgression of a side company he was a partner to.

As to his closing assertion that "mandatory minimums .... work", there is a great body of research that would show otherwise.  I, for one, would love to see a poll taken of federal judges as to the truth of that statement.

Sen. Cotton ends his diatribe against prison reform, the kind that might actually reduce the prison population, with an affirmation of "faith-based and other antirecidivism programs".  I heartily concur, in fact, I wish everyone would embrace the teaching of the Bible. In it we read this great truth - "For judgment will be without mercy to anyone who has shown no mercy; mercy triumph over judgment." (James 2.13)

If that is deemed as soft on crime, we need to deeply consider where we are heading.

August 24, 2018 at 11:38 AM | Permalink


"My move away from fanhood has been sealed by this editorial, which has impressed me that he's traded the tools of war for the tools of sophistry."

This is like a wife claiming that when her husband was squeezing her neck that was love play but now that he is choking her she is being abused.

Posted by: Daniel | Aug 24, 2018 11:52:11 AM

Professor Berman: the link to the blog does not work. Could you fix the link or give us the full web address?


Posted by: defendergirl | Aug 24, 2018 12:43:45 PM

Thanks for the link to that blog, Doug. I read through several posts and skimmed several more.

What I thought was interesting is how the author still doesn't see anything wrong with the system. Rather, he views what is happening in sentencing as a collection mistakes. This specific sentence doesn't make any sense, that specific sentence doesn't make sense but that is happenstance. Stupid, regrettable things happen and life that he wishes didn't happen but there is no system-wide failure.

He's like many others who suffer from moral cognitive dissonance and it goes like this:

(1) The system rewards the just and punishes the guilty.
(2) He is just and good.
(3) The system has judged him guilty.

What do? Well, one thing to so would be to blame the system but that would force him to give up his belief that the system is just and good, the cognitive map that have underpinned his moral world for 60 years. This is the path of the rebel or monk. The second option would be to confess his sins to big brother Sessions and Cotton and admit that he is not a good or just person but that would force him to give up his own moral self image. This is the path of the seeker or pilgrim. The third option is to believe that it was all one big mistake and that one day the nightmare will be over and everything will return to normal. This is the path of denial or the prayer for indulgence.

I wonder which path will win out, in the end.

Posted by: Daniel | Aug 24, 2018 12:43:48 PM



Posted by: Daniel | Aug 24, 2018 12:44:39 PM

Great post. Does anyone know why Tom Cotton has made it his personal mission to resist all sentencing reforms? He is a disgrace to Harvard. He knows better and is pandering to those who do not. What could be morecontrary to the adage “to those who much is given, much is expected”? What is his game? He seems like a complete sadist? Am I missing something?

Posted by: Mark | Aug 24, 2018 1:46:59 PM

I am from Arkansas. Cotton has been accused of white supremicist tendencies, or at least seeking to appeal to those with them. Why else we he select this peculiar issue on which to hang his hat. It is notable that many of us here in favor of reform are not from the segment of society that has relatives in prison. Yet, we put our energies to use in helping the less fortunate. Cotton, by contrast, seeks to advance by dividing and exploiting. What a disgrace. Does anyone have a defense for him?

Posted by: Michael | Aug 24, 2018 2:11:16 PM

I don't have a defense for Cotton but I will hazard a guess at what game he is playing. The prize he has his eye on is the Presidency. He has made the political decision, just like Ted Cruz, that if he wants to be president he cannot afford to look weak on crime in the Republican primary. That is the difference, as I see it, between him and Jeff Sessions. Session's great strength and great weakness is that he is a true believer; that is what gives him the ability to suck it up and put up with Trump's shit. For Cotton, just like his service in the military, being tough on crime is political expediency.

Posted by: Daniel | Aug 24, 2018 3:01:28 PM

I thin I fixed the blog link after a long day of teaching. Sorry about that...

Posted by: Doug B. | Aug 24, 2018 3:37:21 PM

I'm sorry but reading the OP I have a very hard time finding any sympathy for the author. Someone who fails to see anything wrong with the felon-in-possession situation who instead of challenging the ban as it applies to him (as others have recently managed) just goes ahead and acquires the weapon is difficult to believe on any other subject. He simply sounds very much like an apologist for the guys he deals with.

Such an apparent attitude also makes it hard to credit that he was actually wronged by the DOJ rather than simply being caught.

Posted by: Soronel Haetir | Aug 24, 2018 8:26:05 PM

I largely agree with the above poster, the inability to acknowledge that one broke a law (bracketing off a judgment of that law for the moment) shows a lack of personal responsibility. If the conditions of parole are don't test positive for chemicals x,y,z or don't be in possession of a firearm, and you choose to use chemical x or possess a firearm, you are in violation of parole. The conditions can be argued against on a number of levels, but believing the conditions unjust and violating them, does not mean they suddenly don't apply and you're a victim. That he starts off as a victim of the DOJ (witch Hunt?) feeds right into the conservative narrative of whiney criminals. I think it would be more effective to take responsibility for the conduct, and then pose an argument against the statute(s) and/or overgrowth of federal criminal law. Also, the term "criminal" has both a denotation and connotation. To commit a crime makes one a criminal, by it's definition. The connotation of course is what the guy is arguing against as it impunes his character. The easiest way to end crime is to abolish all criminal laws.

To Doug's statement above about Cotton making the claims he is making because he seeks higher elected office merely acknowledges that a large segment of voters want officials that are tough on crime. The issue isn't Cotton per se then, it's that Americans disagree on the issue. I may have different views than those Americans, but such is life in a democracy.

Posted by: Anonuser879 | Aug 25, 2018 12:13:50 AM

I also see either testing positive or felon in possession as much more than technical parole violations. The former is illegal for all citizens (at least the possession required in order to get that way) and the latter would remain illegal for the convict even were parole satisfied. Much different than failure to show at an appointment.

Posted by: Soronel Haetir | Aug 25, 2018 12:46:05 AM

Anonuser879: I believe it was Daniel asserting that Senator Cotton is making his points for political reasons.

Though I would assert that all elected politicians are always thinking politically and strategically, I also sense that Senator Cotton is a genuine believer in the notion that having more people in prison is good for society. There are principled and plausible utilitarian and retributive reasons for embracing a "tough and tougher" approach to the use of prison in the US, and Senator Cotton makes it seems like he really believes he is advocating for a better America. But, of course, lots of folks, myself include, disagree with his view of what would make for a better America.

Posted by: Doug B | Aug 25, 2018 7:43:29 AM

Indeed, it was me.

"I also sense that Senator Cotton is a genuine believer in the notion that having more people in prison is good for society."

Trust a psychologist intuition, there is nothing sincere or genuine about that man expect his pursuit of power.

Posted by: Daniel | Aug 25, 2018 4:52:44 PM

I agree that Cotton is for himself and is basically talking out of his rearend on sentencing issues. I also agree if this fellow is a felon, not only is he restricted from guns while on probation, but for life, goes for ammo also. Its not taking responsibility by minimizeing the gun bump and its not realizing your specific limitations.

But its a 5 yr trip for a gun bump I thought, so he tripped another enhzncement or history category was filled out.

After the election look fir Sessions to get fired. Right now all criminal roads from the white house Re headed towards Trump. Look for him to go bye bye as well. He will never get re elected, but then again, if Hillary Clinton is the best the opposition has, whos to say I certainly thought America could do better than these 2.

I would be a better Pres than Trump. I dont twitter. Would get competent staff, not thugs who are my buddies. I would listen to my staff and keep a low profile, a very low profile.

Never had hookers, darn I must of missed something... Would not make exec orders, let congress do their job. Wouldnt challenge foreign thug leaders,

Posted by: MidWestGuy | Aug 25, 2018 5:56:44 PM

Being a better president than Trump is not setting the bar particularly high.

Posted by: Soronel Haetir | Aug 26, 2018 4:21:26 PM

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