Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system

With Jeff Sessions now in the role of Attorney General, Senator Tom Cotton is one of the last members of Congress eager to push a tough-and-tougher agenda.  Despite the US position as world leader in incarceration, Senator Cotton asserted a few years ago, as noted here, that "we have an under-incarceration problem."  His thinking today finds expression in this new Wall Street Journal article headlined "Reform the Prisons Without Going Soft on Crime: Proposals to give judges more discretion and cut mandatory minimums endanger public safety."  Regular readers will be familiar with many of the moves in this piece (even though we've not heard much from Bill Otis lately).  Here is a sample:

The U.S. faces a drug epidemic today, exactly the wrong time to go soft on crime.  According to the National Institute on Drug Abuse, in 2017 more than 72,000 Americans died of drug overdoses, a 37% increase from 2015 and a nearly 100% increase since 2008.  Violent crime has declined since the 1980s because mandatory minimums adopted then locked up violent criminals.  But in 2015-16, the most recent years for which full data are available, violent crime increased at its fastest rate in a quarter-century, though preliminary data suggest it might have leveled off in 2017....

This naive policy ignores the reality of recidivism.  Five out of six prisoners end up rearrested within nine years, according to a recent Justice Department study. In fact, on average reoffenders are rearrested five times — and not for minor crimes.  Only a handful of ex-convicts return to prison exclusively for parole violations, whereas 77% of drug offenders are rearrested for serious nondrug crimes, such as murder and rape.  Most criminals will commit more crimes after being released from prison, even with improved rehabilitation programs.  The last thing Congress should do is shorten their sentences or allow them to “serve time” in home confinement....

What is the logic of such leniency?  Activists say they want to reverse “mass incarceration.”  That is a curious characterization when less than half of crimes are even reported to police and more than 80% of property crimes and 50% of violent crimes that are reported go unsolved, according to Pew Research Center.  Tell those victims denied justice that the U.S. locks up too many criminals.

Virtually no one goes to federal prison for “low-level, nonviolent” drug offenses, especially mere drug use or possession. In 2015, there were 247 inmates in federal prison for drug possession. In these rare cases, the inmates usually pleaded down from a more serious offense.  In the extreme case of a manifestly unjust sentence, the pardon power is a better instrument of justice than broad sentencing reductions. President Trump has shown himself more than willing to intervene to redress such cases.

Some fiscal conservatives believe that America spends too much on the prison system.  Yet the Bureau of Prisons costs taxpayers less than $8 billion a year, or about 0.2% of the entire federal budget.  After national security, the government’s most basic responsibility is to protect its citizens from crime. The costs of crime and disorder — personal and economic — far outweigh the downsides of putting serious criminals behind bars.

Mandatory minimums and truth-in-sentencing laws work. Rather than eliminate them, Congress should improve access to faith-based and other antirecidivism programs in federal prisons.  American families deserve safe communities and protection from drugs and crime.  Criminals, especially first-time offenders who grew up in rough environments, deserve second chances — once they have done their time.

I suspect most readers can readily see logical flaws in Senator Cotton's advocacy here (e.g., how do poor clearance rates for violent crimes justify excessive drug sentences?).  Most fundamentally, the bills with a chance for passage in Congress do not get anywhere close to "eliminating"  mandatory minimums or truth-in-sentencing laws, and they in fact sadly do not really do all that much more than enhance antirecidivism programs in federal prisons.  But even the modest bills with a shot at passage (which have the support of Prez Trump) are too much for Senator Cotton.

John Pfaff has this twitter thread in which he describes the effort as "horrifically dishonest." John attacks various numbers in the op-ed, and I will just stress a telling flip-flop on the clemency front. Senator Cotton says "the pardon power is a better instrument of justice than broad sentencing reductions," but many folks on the right criticized Prez Obama's use of clemency at the end of the term by saying it should be Congress in charge of granting any serious sentencing relief.  Senator Cotton here also says here "President Trump has shown himself more than willing to intervene to redress such cases," but he has so far only commuted two extreme federal sentences (roughly .001% of the federal prison population).  Prez Trump has promised to do more, but he can not be expected to nor depended upon to do the kind of reform via clemency that Congress should be doing in the first instance.

UPDATE: Mark Holden has this new commentary, headlined "Correcting the Record About Sentencing Reform and Mandatory Minimums," which goes point-by-point through key claims made by Senator Cotton and provides different perspective on his assertion.

ANOTHER UPDATE:  Derek Cohen over at Right on Crime also has this notable response to Senator Cotton's piece under the headline "Setting the Record Straight"