Half of all federal prisoners are drug offenders, many of them nonviolent offenders with overly long sentences due to mandatory minimum laws that tie judges hands. The Sentencing Reform and Corrections Act seeks to ease federal mandatory minimum requirements, particularly with regard to drug-related crimes. In addition to changing sentencing going forward, the law would apply retroactively to some current prisoners, who could have their cases reviewed.

It seems fitting that Sen. Tom Cotton, whose senate career has been marked by constant grandstanding against any form of diplomacy in order to appear as bellicose as possible as cheerleader for war, would now emerge as the grandstander in chief against any form of criminal justice reform in order to appear “tough on crime.” Politico reports that Cotton is “hoping to torpedo one of the only pieces of major legislation that could pass in President Barack Obama’s final year.”


This issue is always a tough political slog because prisoners aren’t exactly a politically powerful constituency. Indeed, in the case of felons, the government that represents them bars their right to vote even after they have served their sentence. Still, this bill has gotten at least some momentum because of backing from reform advocates on both the left and the right, including the Koch brothers and a number of key congressional Republicans, such as Senate Majority Whip John Cornyn of Texas. Obama has asked for a bill on his desk and seems likely to sign the bill that passed the Senate Judiciary Committee last fall 15-5 with bipartisan support. 

But all five of those no votes were Republicans, and the split within the GOP could threaten whether the bill ever gets to the floor. Politico reports


GOP tensions over a bill that would effectively loosen some mandatory minimum sentences spilled over during a party lunch last week, when Cotton (R-Ark.), the outspoken Senate freshman, lobbied his colleagues heavily against the legislation, according to people familiar with the closed-door conversation. The measure passed the Senate Judiciary Committee last fall with bipartisan support.

“It would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons,” Cotton said later in an interview with POLITICO. “I think it’s no surprise that Republicans are divided on this question … [but] I don’t think any Republicans want legislation that is going to let out violent felons, which this bill would do.”

In fact, what the bill would do is allow retroactive review on a case by case basis. Again, from the Politico report

Backers of the bill say their changes to sentencing laws merely allow qualifying inmates to have their cases revisited by the same judge and prosecutor who landed them in prison. The judge would then have the discretion to hand down a reduced sentence.

“It’s not true,” said Cornyn (R-Texas) of opponents’ insistence that violent criminals could be freed under the sentencing reforms. “I’d say, please read the bill and listen to people like [former Attorney General] Michael Mukasey who makes the point, which is a critical point, that there’s no get-out-of-jail-free card.”

In addition to easing some mandatory minimum laws, the bill would impose mandatory minimums for some other crimes, such as the relatively rare interstate domestic violence (domestic violence is typically a state crime). The bill also includes other elements of criminal justice reform: allowing current prisoners with severely long sentences that came under federal law’s previous disparity between crack and cocaine to petition for shorter sentences; compassionate release for sick or dying prisoners; allowing certain prisoners sentenced to life as juveniles to apply for parole; limiting the use of solitary confinement on juveniles; allowing prisoners who are low risks for recidivism to reduce their sentences if they participate in education or job programs; reducing the mandatory “three strikes” from a life sentence to 25 years. 


It’s important to keep in mind that all of this would only apply to federal crimes; the nation’s policy of mass incarceration is largely a result of policies and decisions from prosecutors and judges on the state and local level. 

Here’s the big picture: More than 2 million Americans are incarcerated, at an annual cost of more than $80 billion a year. One in four American adults has a criminal record. The United States has a quarter of the world’s prisoners despite making up just 5 percent of the world’s population, with the effects felt disproportionally in poor communities and communities of color.

These are the daunting figures that have led to so much interest in reform on the left and the right, with many Republicans showing courageous leadership on a tough political issue. Just not Tom Cotton.