« Fascinating sentencing sentiments and commitments in new policy memo from new Manhattan DA | Main | “A Family-Centered Approach to Criminal Justice Reform.” »

January 4, 2022

Senator Cotton criticizes new OLC opinion on CARES home confinement and asks AG Garland lots of follow-up questions

Though the season of the Grinch may be over, US Senator Tom Cotton is starting the new year full of grinchy grouchiness about various criminal justice issues.  I noted here his recent foolish op-ed fretting about a "jailbreak" and an "under-incarceration crisis," and now a helpful colleague made sure I did not miss this press release from the Senator's office titled "Cotton Demands Answers from DOJ About Releasing Criminals to Home Confinement."  Here is how the release starts:

Senator Tom Cotton (R-Arkansas) today wrote to U.S. Attorney General Merrick Garland regarding the Department of Justice’s recent decision to ignore the clear limits placed by Congress on pandemic-related home confinement of convicted federal criminals.

In part, Cotton wrote, “The Department’s Office of Legal Counsel correctly concluded in January 2021 that the only tenable reading of the CARES Act is that the Bureau of Prisons (BOP) could only exercise expanded home confinement placement authority during the coronavirus national emergency, and that the law requires that the BOP return such inmates to prison and follow the limits of longstanding federal law following the end of the emergency.”

“Unfortunately, it seems that you have now decided to bow to the pressure from political activists rather than do your job.  The Office of Legal Counsel, at your direction, issued a slapdash opinion reversing itself in December 2021.  That new opinion is not based on the law, but rather on the policy goals of criminal leniency,” Cotton continued.

The full three-page letter may be found here at this link, and there is more Tom Cotton "tough and tougher" bluster at the start of the letter.  But the questions that make up the heart of the letter are intriguing on a number of fronts, and I would be especially interested to see if and how AG Garland and his team responds to these closing queries:

Please provide a list of all inmates who are currently placed on home confinement under the temporary authority granted by the CARES Act, broken down by primary offense, total sentence length, and the number of months remaining under their sentence. 

How many inmates who were placed on home confinement under the temporary authority granted by the CARES Act have had their home confinement rescinded or have been rearrested for a new offense?  Please provide a description of the offenses for which any such inmates have been rearrested, or the reasons for which their home confinement was rescinded.

Just a few of many prior related posts:

January 4, 2022 at 06:24 PM | Permalink


Let's face it, Cotton is just an a-hole. Vindicate, dishonest, and sadistic. Very much like Bill Otis. What happened to these folks to make them like this?

Posted by: Mike | Jan 4, 2022 8:28:36 PM

People like Senator Tom Cotton are rooted in the 17th century religious thinking about a punishing God, as reflected in the Old Testament. Their approach to criminal justice is not based upon the New Testament philosophy of love and forgiveness. Most criminal laws and punishment are rooted in religious thinking and beliefs.

Posted by: Jim Gormley | Jan 5, 2022 8:40:44 AM

A couple of things come to mind after reading Sen. Cotton's letter. First, I wonder if AG Garland will be as responsive to Cotton's demands as Cotton's party members have been to Congress's demands for cooperation on the resurrection issues under investigation? Just as importantly, after reading this drivel, I for one believe that Cotton's membership on the "Select Committee on Intelligence" should be revoked as his writing certainly reflects he has very little.

Posted by: Redlon | Jan 5, 2022 11:14:26 AM


Although I lack the achievements and public contributions of Tom Cotton, I'm flattered to be compared to him. Thank you.

As to his character, he has the courage to be a combat veteran, while you decline to identify yourself on an Internet blog.

Posted by: Bill Otis | Jan 5, 2022 11:28:54 AM

Jim Gormley--

Just dessert and accountability are almost universally accepted values in criminal justice, in this country and others, and over many centuries. There is a place for forgiveness and leeway, as is shown in lighter sentences for first offenders and younger people, but if that's all you have, you're inviting more crime, and your invitation will get accepted.

Posted by: Bill Otis | Jan 5, 2022 11:42:48 AM

Bill Otis: I do believe in the punishment of crimes, but I frequently find the sentences too severe. One reason is that more than half of all crimes involve drugs and alcohol, and a significant portion involve some kind mental illness. There is clearly a significant genetic element in who becomes an alcoholic or drug addict, but the law says that voluntary intoxication is no excuse or defense. Given modern psychological and psychiatric knowledge about alcoholism and drug abuse, it makes sense to me for criminal sentences to focus more on treatment and less on punishment, and for sentences to be shorter in many cases. The philosophy of criminal punishment comes from religion, and we could learn more from the New Testament love and forgiveness than from the Old Testament punishing God.

Posted by: Jim Gormley | Jan 13, 2022 10:28:13 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB