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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.

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.