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Cotton opposes bill to trim prison terms, calls it too lenient

by Frank E. Lockwood | December 2, 2018 at 4:30 a.m. | Updated December 2, 2018 at 4:30 a.m.
U.S. Sen. Tom Cotton, shown Tuesday on Capitol Hill, blames his Senate colleagues for proposed criminal justice overhaul legislation that, he says, goes into the “direction of criminal leniency,” which he cannot support. Higher incarceration rates have led to safer streets, he said.

WASHINGTON -- Arguing that more Americans belong behind bars, U.S. Sen. Tom Cotton, R-Ark., is promising to fight any efforts by lawmakers and the White House to ease federal sentencing laws.

That includes legislation -- Cotton calls it a "criminal leniency bill" -- recently endorsed by President Donald Trump.

A White House official defended the legislative proposal Saturday, portraying it as a step in the right direction.

"We have a recidivism rate that is too high in this country. The First Step Act is based on reforms done in many states that have led to reductions in crime," the official told the Arkansas Democrat-Gazette.

Current criminal penalties generally aren't excessive, Cotton said in an interview last week.

Rather than giving greater discretion to "liberal judges," decisions to reduce individual federal sentences should be made by the president, he said.

"I grant that, in a particular case, the interaction of specific facts and the law can create an unjust sentence. If that happens, the best course of action is the scalpel of the governor or the president's pardon and clemency power, not the ax of criminal leniency legislation," Cotton said.

Article II, Section II, of the U.S. Constitution already grants the president the "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

There were 180,975 federal inmates in the U.S. as of Thursday, according to the Federal Bureau of Prisons. That included 3,406 who are incarcerated in Forrest City, the agency said.

In 1980, the federal inmate population was closer to 25,000 people.

Asked whether the White House is soft on crime, Cotton said administration officials had initially embraced a less sweeping version of criminal justice reform legislation. He blamed Senate colleagues for the legislation's latest incarnation.

"Unfortunately, the Senate proponents have taken it in the direction of criminal leniency. That's not something I can support even though I do support, in concept, prison reform," he added.

Cotton also opposed the House version of the bill. "But it was much closer to a good bill than what we're considering in the Senate," he said.

The earlier version passed in the House 360-59. Only two Republicans -- U.S. Rep. Steve King of Iowa and U.S. Rep. Bill Huizenga of Michigan -- voted against it.

The latest version, which received White House backing in November, would scale back mandatory minimum sentencing laws, reducing penalties in some instances and giving judges greater discretion when sentencing nonviolent offenders with limited rap sheets.

The changes contained in the proposed First Step Act would apply only to people convicted of federal crimes.

If approved, those imprisoned under the three-strikes law would no longer face automatic life sentences; instead they would face 25 years in prison. It would also make retroactive a 2010 law that reduced the disparity between powder-cocaine and crack-cocaine-related convictions.

Before 2010, crack-cocaine possessors were dealt with more severely than those caught with powder cocaine.

In addition, the proposed legislation would expand early release programs for low-risk prisoners, enabling well-behaved inmates to serve shorter sentences and to get credit for enlisting in job-training programs, among other things, supporters say.

Prisoners would be housed within 500 miles of their hometowns.

The use of shackles to restrain pregnant women would generally be prohibited. The exceptions would be because there was no other means of stopping a woman who is a flight risk or who is determined to harm herself or others, or if it is necessary to protect her medical safety.

In the interview, Cotton said he opposes passing laws to shorten sentences. "I think sentencing right now is appropriate," he said.

Reduced penalties for crack-cocaine-related crimes should not be retroactive, he added.

In a 2016 speech, Cotton rejected calls for more leniency, telling a Hudson Institute audience, "If anything, we have an under-incarceration problem."

Asked whether under-incarceration is a problem, Cotton said it is.

"How could anyone think otherwise when 90 percent of property crimes do not result in a conviction, and 80 percent of violent crimes do not result in a conviction. If your car has been stolen or your home has been burglarized or your wife has been raped or your husband has been murdered and there's been no arrest and conviction, I think those victims would agree that we have an under-incarceration problem," he said.

Higher incarceration rates have led to safer streets, he said.

"One reason we've seen such sharp declines in crime in this country over the last 30 years is because we finally got tough on crime and we've cracked down on serious drug traffickers and we limited the discretion that liberal judges had to give shorter sentences," he added.

Despite the tougher laws, current punishments are often inadequate, Cotton said.

"There are way too many ... people who are convicted of crimes who face no serious jail time, who despite the serious and heinous nature of their offenses end up on parole or some kind of supervised release or home confinement which [places] very little restrictions on their liberty at all," Cotton said. "There are evil, dangerous people in the world. It's a regrettable thing but it's always been so and it always will be, and the only way to keep the public safe from them is to lock them away."

By opposing the First Step Act, Cotton is challenging not only the White House, but also a number of Capitol Hill Republicans.

They argue that long-term sentences for low-risk, nonviolent offenders are expensive and often ineffective. They say their legislation will enable ex-prisoners to become contributing members of society again.

U.S. Sen. Chuck Grassley of Iowa is the bill's sponsor. Co-sponsors are Sens. Joni Ernst of Iowa, Mike Lee of Utah, Lindsey Graham and Tim Scott of South Carolina, Pat Roberts and Jerry Moran of Kansas, Susan Collins of Maine, Jeff Flake of Arizona, Rob Portman of Ohio, Rand Paul of Kentucky, Todd Young of Indiana and Lamar Alexander of Tennessee.

Former House Speaker Newt Gingrich has endorsed the measure. Former Arkansas Gov. Mike Huckabee has urged Cotton to reconsider his stance.

Although there is bipartisan support for legislation overhauling the criminal justice system, Cotton said the bill appeals primarily to a particular type of Republican.

"The proponents tend to be more in the libertarian camp of the Republican Party than in the conservative camp. Many of them have objections to criminalizing drugs at all. I respect their views. Their views are not widely shared by Arkansans who recognize that things like crystal meth and cocaine and heroin and fentanyl are grave dangers to our communities," he said.

Cotton's view of a conservative-libertarian split was dismissed Friday by former Virginia Attorney General Ken Cuccinelli, one of several Republicans who hopes to sway undecided lawmakers.

"I certainly hope libertarians would support this bill, but the impetus for this bill on the right is coming from conservatives, not libertarians," he said. "It has been conservatives in Texas, Georgia, South Carolina and many more states that started the ball rolling on criminal justice reform -- doing it in the states. That was conservatives, not libertarians. And it is conservatives like me that are behind the push for the federal bill, and I'm sure as heck not soft on crime."

Cotton told Republican colleagues recently that there may be consequences if they back the legislation, one of the co-sponsors said.

"He was the guy who was most sharply against the bill," Graham told "He's saying, 'Someone's going to get out; we're all going to lose our seats.'"

Fear that the legislation will backfire politically is understandable, according to Austin Sarat, a professor of jurisprudence and political science at Amherst College in Amherst, Mass.

"In some places, reform in criminal justice and reform of imprisonment practices is still equated with being soft on crime," he said.

Even when crime rates are falling, there are political risks to these types of changes.

"Crime policy is, I would say, like an unexploded land mine," he said.

Former Massachusetts Gov. Michael Dukakis learned that lesson the hard way during his 1988 presidential campaign, Sarat noted.

Republicans highlighted that state's furlough program, which had given convicted murderer Willie Horton a weekend pass. Instead of returning to prison, he traveled to Maryland where he committed rape, armed robbery and assault.

"It only takes one dramatic crime to have politicians worry that they're going to be seen as on the wrong side, as soft on criminals," Sarat noted.

Cotton's stand on criminal justice isn't shared by Americans for Prosperity Arkansas.

The group's parent organization spent more than $220,000 during the 2014 election season to help Cotton unseat incumbent U.S. Sen. Mark Pryor, according to the Center for Responsive Politics, which tracks money and politics.

Often, Americans for Prosperity officials see eye to eye with Cotton, but not this time.

"We're doing our best to persuade Sen. Cotton that this is of interest to Arkansans. We're trying to find common ground with Sen. Cotton to move this forward," said Ryan Norris, the group's state director.

It costs roughly $33,000 per year to lock up an inmate in the U.S., he said. Most of those who are incarcerated -- nearly 90 percent -- will eventually be released, he said.

They need the "models, the tools [and] the support mechanisms on the outside ... that will help them to reintegrate as productive citizens," Norris said.

The U.S. has one of the highest incarceration rates of any nation in the developed world, he said.

"The tough-on-crime philosophy has not worked well," he said. "We have to get smart on crime and use evidence-based solutions ... that are proven to decrease recidivism [and] reduce crime."

Cotton said the legislation is misguided.

"Unfortunately what started as a prison reform effort has transformed into a criminal leniency bill, and I cannot support a bill that will release serious repeat and violent felons early and slash their sentences in the future," he said.

"I do support efforts to try to help prisoners get back on their feet, learn a skill, get a GED, find God and no longer be a menace to society after they have paid their debt to society."

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