Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act

Senator Tom Cotton, who has been the main and most vocal opponents of federal criminal justice reform, has this notable new USA Today commentary.  I was expecting the piece to argue against the FIRST STEP Act that has been endorse by Prez Trump and has wide bipartisan support.  But, as these excerpts highlight, Senator Cotton in this piece primarily articulates what further statutory reforms are needed to fix a broken federal criminal justice system:

Here’s what genuine criminal-justice reform would do: reduce arbitrary government power over lives and protect us from the drug epidemic ravaging our community. Congress can take three simple steps to achieve these goals.

First, we need to clean out the federal criminal code. Today, no one even knows for sure how many federal crimes are on the books. One estimate found between 10,000 and 300,000 regulations that can be enforced criminally, in addition to the more than 5,000 federal criminal laws.

Many of those federal crimes would be funny, if they weren’t so dangerous to our liberty. For example, there’s a federal law against selling “Turkey Ham” as “Ham Turkey.” Think such laws are never enforced? Think again. Gibson Guitars was prosecuted under a century-old law at a cost of millions of dollars to the taxpayers and the company because it allegedly transported wood in a way that may have violated laws of India. We should scrub the federal criminal code and remove such outdated and arbitrary laws. And we should create a transparent database of this shorter, more concise criminal code.

Second, many federal crimes do not require mens rea, or a “guilty mind.” Mens rea, a common element of most state crimes, means that the offender must have a certain state of mental culpability to be charged with the crime. Coupled with the vast and confusing criminal code, the lack of mens rea leaves Americans at risk of arbitrary prosecution for trivial conduct. Senator Orrin Hatch has been a champion for mens rea reform to ensure that, at a minimum, a defendant should have known his conduct was wrong before facing criminal charges. Congress should incorporate these concepts into criminal-justice legislation.

Third, the federal criminal code hasn’t kept up with the opioid crisis, allowing the epidemic to spread across the country.  For example, current law doesn’t reflect the potency of fentanyl, a highly lethal opioid responsible for killing tens of thousands of Americans each year. A trafficker can carry enough fentanyl to kill 5,000 Americans before the lowest mandatory minimum sentence applies, and these traffickers receive a mere five-year sentence for distributing enough poison to kill more Americans than died on 9/11.

Unfortunately, the legislation moving through Congress includes no mens rea reform, no reduction in the criminal code, and no crackdown on deadly drug traffickers. Astonishingly, the bill goes soft on some of the worst crimes — trafficking heroin and fentanyl — by allowing most traffickers to spend up to a third of their sentence at home, where many of them will no doubt return to dealing drugs.

At this point, it’s best for Congress to pause on criminal-justice legislation and take the time to reform our criminal code, include mens rea as an element of most crimes, and strengthen the sentences for dangerous drug crimes. Congress can also focus on how to rehabilitate felons to help them get off on the right foot after serving their sentence. What Congress ought not do is rush through flawed legislation in a lame-duck session.

I agree with Senator Cotton that we need to reduce the number of federal crimes, include strict mens rea protections in all federal criminal provisions, and better respond to the opioid crisis (although I think history has shown that increased federal mandatory minimums are an ineffective way to respond to drug problems). For that reason, I sincerely hope Senator Cotton is busy drafting bills to address these matters that Congress can and should consider swiftly after the passage of the FIRST STEP Act.  But, as the name suggests, the FIRST STEP Act does not claim to fix all the myriad problems of federal criminal law, and so Congress can and should address Senator Cotton's (second step) concerns right after they take a critical first step.