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Analysis

Don’t Let Misleading Claims Derail Federal Sentencing Reform

Sen. Tom Cotton’s op-ed misstates the facts and places him far outside the mainstream of both political parties.

prison
WIN-Initiative/Neleman

In a recent opin­ion piece for the National Review, Sen. Tom Cotton (R-AR) claimed that a pack­age of new, bipar­tisan crim­inal justice reform bills would negat­ively impact public safety and “take crim­inal leni­ency to new extremes.” He also criti­cized a bipar­tisan push to allow the more than 4,000 indi­vidu­als safely serving out their sentence at home to be allowed to stay there after the pandemic “ends.”

These argu­ments are profoundly misguided. The bills offer an oppor­tun­ity to reduce the racial dispar­it­ies caused by federal drug senten­cing laws that have devast­ated communit­ies of color, disrup­ted famil­ies, and continue to drain neigh­bor­hoods of resources. And people serving out their prison sentences in home confine­ment have already proven they are no threat to public safety.

The core of Cotton’s case against crim­inal justice reform rests on a series of mislead­ing claims about crime and recent policy changes. Specific­ally, he says the First Step Act — a 2018 senten­cing and prison reform law — led to a spike in crime and cocaine over­dose deaths, thus coun­sel­ing against further reforms. But there is no evid­ence for either claim. Homicides did rise in 2020 and appear to be rising still, though the tide may be ebbing. Experts point to several poten­tial causes, from social and economic insec­ur­ity to gun usage to fray­ing police-community rela­tions.

The First Step Act is not a cause that any expert would point to. While it was a major accom­plish­ment, the law primar­ily benefited a relat­ively small number of people convicted of federal crimes, espe­cially drug offenses. Blam­ing a nation­wide homicide increase on people released because of retro­act­ive changes to drug laws just does­n’t make sense. Simil­arly, drug over­dose deaths are indeed rising, but cocaine-related deaths make up just part of a broad national trend that signi­fic­antly pred­ates the First Step Act. Over­dose deaths are seri­ous, and if Cotton is concerned about them, he could better spend his time support­ing evid­ence-based solu­tions like expand­ing addic­tion treat­ment, rather than advoc­at­ing for send­ing people to prison, where treat­ment and other program­ming is often hard to come by.

The data bears this out. Cotton says that the Justice Depart­ment has “conspicu­ously refused to release recidiv­ism data on First Step Act bene­fi­ciar­ies,” insinu­at­ing that this hidden inform­a­tion may prove his point. But the DOJ actu­ally did release recidiv­ism data in Decem­ber 2020, show­ing an 11 percent rate of rearrest among 7,000 people released under the law. That’s relat­ively low, even factor­ing in the short 11-month range of the analysis. Accord­ing to one 2016 study by the U.S. Senten­cing Commis­sion, 17 percent of people released from federal pris­ons are rearres­ted after one year. Far from making Cotton’s case for him, the First Step Act in fact illus­trates that crim­inal justice reform and public safety can work hand-in-hand.

Cotton also takes aim at the federal prison system’s home confine­ment program, which — as expan­ded by the bipar­tisan Coronavirus Aid, Relief, and Economic Secur­ity Act (CARES Act) — allowed thou­sands of people to serve out their sentences from the safety of home instead of prison. This program proves that we can trans­form our crim­inal legal system into one that doles out mercy and can promote fair­ness, public safety, and public health.

Because home confine­ment trans­fers were care­fully made, and due to the extens­ive use of elec­tronic monit­or­ing, as of April 2021, only three indi­vidu­als put on home confine­ment pursu­ant the CARES Act had commit­ted new offenses. This is espe­cially notable consid­er­ing that recidiv­ism tends to peak in the first year of release. Send­ing these people back to prison — as Cotton would prefer — would help nobody.

And while Cotton strains to attack Demo­cratic senat­ors for these policies, they are hardly alone in advoc­at­ing for people who have already been placed on home confine­ment to remain there. Lead­ers in law enforce­ment have also shown support for keep­ing these indi­vidu­als home.

Lastly, Cotton expresses bound­less confid­ence in the federal prison system, prais­ing (but not naming) “the advant­ages of federal incar­cer­a­tion” and call­ing excess­ive drug penal­ties “firm and effect­ive.” This confid­ence is unwar­ran­ted. A grow­ing body of evid­ence shows that prison sentences are too long, with dimin­ish­ing returns the longer they get. And as Justice Sonia Soto­mayor noted in a recent Supreme Court ruling, “there was no mean­ing­ful policy justi­fic­a­tion for [the] unequal sentences” that the First Step Act partially correc­ted.

Cotton’s argu­ment is not only out of step with his own party — the First Step Act passed Congress with bipar­tisan support and was signed into law by Pres­id­ent Trump — but his claims also lack any basis in evid­ence and ignore decades of research indic­at­ing the public safety fail­ure of mass incar­cer­a­tion. We know that our nation’s justice system fails to live up to the Amer­ican ideals of equal­ity, fair­ness, and redemp­tion. Let’s not let Cotton’s calls for extreme and inef­fect­ive policies get in the way of fixing it.