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Tom Cotton Is Wildly Wrong About Justice Reform

08/17/2018

The effort to reform the federal prison system is gaining a lot of attention. President Donald Trump has expressed support for prison reform on multiple occasions, including a mention in his State of the Union address and, most recently, during a meeting with a group of African-American pastors. President Trump has also expressed a willingness to include sentencing reform in the prison reform bill.

As we’ve explained many times, this effort comes from the states. More than 30 states have passed criminal justice reforms that focus reducing the rates of repeat offenders, known as recidivism. The states that have led the way on criminal justice reform include Texas, Georgia, South Carolina, and Utah. Many of these states have also passed sentencing reforms for nonviolent drug offenders to focus limited resources on violent offenders.

The prison reform bill -- the FIRST STEP Act, H.R. 5682 -- is modeled on the state level successes. The bill passed the House by a vote of 360 to 59 and is awaiting action in the Senate. Most agree that in order for the bill to move to floor, some modest sentencing reform provisions will have to be included.

Although conservatives like Sens. Mike Lee (R-Utah) and Rand Paul (R-Ky.) support criminal justice reform, including sentencing reform. Others have refused to acknowledge the successes of the states and are working against a key part of President Trump’s domestic policy agenda.

Sen. Tom Cotton (R-Ark.) is among the small group of vocal opponents. On Thursday, he wrote a piece in the Wall Street Journal in which he railed against prison reform and sentencing reform. He got a lot wrong. Below we go through various parts of his screed to correct the record.

“The U.S. faces a drug epidemic today, exactly the wrong time to go soft on crime. According to the National Institute on Drug Abuse, in 2017 more than 72,000 Americans died of drug overdoses, a 37% increase from 2015 and a nearly 100% increase since 2008."

There is no reason to believe that harsher prison sentences would reduce drug use. In an analysis released earlier this year, the Pew Charitable Trusts found no relationship between imprisonment and drug use, arrests, or overdose deaths.

“If imprisonment were an effective deterrent to drug use and crime, then, all other things being equal, the extent to which a state sends drug offenders to prison should be correlated with certain drug-related problems in that state,” Pew researchers explained. “The theory of deterrence would suggest, for instance, that states with higher rates of drug imprisonment would experience lower rates of drug use among their residents.”

“To test this, Pew compared state drug imprisonment rates with three important measures of drug problems— self-reported drug use (excluding marijuana), drug arrest, and overdose death—and found no statistically significant relationship between drug imprisonment and these indicators. In other words, higher rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths,” the analysis added.

The better way to address the issue is to treat the drug problem as an addiction issue. Simply warehousing people in prisons doesn’t address the underlying problem. In fact, it will likely exacerbate the problem by exposing the user to prison, making it harder for him or her to find a job, get an education, or even find housing. A criminal record is often a barrier to a productive life.

"Violent crime has declined since the 1980s because mandatory minimums adopted then locked up violent criminals. But in 2015-16, the most recent years for which full data are available, violent crime increased at its fastest rate in a quarter-century…”

Congress passed the Comprehensive Crime Control Act in 1984. At the time, the violent crime rate was 539.2 reported crimes per 100,000 inhabitants. When Congress passed the Anti-Drug Abuse Act in 1986, the violent crime rate was 620 reported crimes per 100,000 inhabitants. Politicians hailed these laws, which included harsh penalties for drugs, as deterrents to crime. Yet, the violent crime rate continued to increase, peaking in 1991 at 758.1 reported crimes per 100,000 inhabitants. By the time Congress passed the Violent Crime Control and Law Enforcement Act in 1994, the violent crime rate was already in decline.

Violent Crime and Imprisonment Rates

Although the reasons for the decline in violent crime are topic of debate, the connection between the decline of violent crime rates and incarceration is specious.

William Spelman, a professor at the University of Texas-Austin, has estimated that a heavy reliance on incarceration is responsible for 25 percent of the decline in violent crime. Even if one were to accept this conclusion, Spelman’s estimate means that 75 percent of the decline in violent crime is related to other factors.

Others have cast more skepticism on the impact of incarceration. The Vera Institute for Justice has noted, “Increased incarceration has a marginal-to-zero impact on crime. In some cases, increased incarceration can even lead to an increase in crime.”

In a 2014 study, the National Research Council of the National Academies noted, “[T]hree reports of panels convened by the National Research Council have reviewed the research literature on the deterrent effect of such laws and have concluded that the evidence is insufficient to justify the conclusion that these harsher punishments yield measurable public safety benefits.”

According to the available research, Cotton is either wildly overstating the impact of incarceration on crime rates or he’s completely wrong.

“...preliminary data suggest violent crime might have leveled off in 2017.”

Well, it’s good that Cotton acknowledges that violent crime “might have leveled off in 2017.” Only two years ago, he suggested that “we may be living through the leading edge of a new crime wave.”

Of course, Cotton was doing what politicians do, which is utilizing the politics of fear. Even during the midst of the violent crime decline, there were two years, 2005 and 2006, in which violent crime rates increased before leveling off and declining once again. The lesson is that no conclusions should be drawn from a limited dataset.

For what it’s worth, the violent crime rate is lower now than it was in 1971.

Violent Crime

The homicide rate is lower than it was in 1967.

Homicide

The property crime rate is roughly where it was in 1966.

Property Crime

“Congress and the U.S. Sentencing Commission cut prison terms for drug traffickers, gang members and other violent felons in recent years—putting more criminals on the streets. The average federal prison sentence for drug traffickers declined 19% between 2009 and 2016. As a result, the federal inmate population has declined 16% since 2013 and now sits at the lowest level since 2004.”

Cotton believes that this reduction in the federal prison population somehow correlates to the two-year increase in violent crime. As John Pfaff, a professor at Fordham Law School, rhetorically asked, “That 16% decline comes to about 30,000 people. We have about 1.5 million in prison. That’s 2%. Do you really think a 2% decline moves the crime needle?”

No, it doesn’t move the needle because the federal prison population is relatively small when compared to the states. In 2016, the federal prison population represented roughly 13 percent of all people in prison in the country. State prisons are where the vast majority of prisoners are held because, naturally, the vast majority of crimes are prosecuted at the state level.

The federal prison population reached its year-end peak in 2012 when 217,815 people were incarcerated in federal facilities. By comparison, 1.361 million people were incarcerated at the state level. At the end of 2016, there were 189,192 people incarcerated in federal facilities. As of yesterday, 183,160 people are in federal prisons.

“Five out of six prisoners end up rearrested within nine years, according to a recent Justice Department study.”

We’ve touched on this study before. The study Cotton is referring to was produced by the Bureau of Justice Statistics (BJS), which is housed under the Department of Justice. The study analyzed recidivism of prisoners released in 2005 from 30 states. Recidivism was defined by rearrest, which isn’t a good measure. A better measure of recidivism is reconviction or reincarceration.

In 2007, Texas became the first state to pass and implement significant reforms to reduce recidivism. Since then, other states have passed similar reforms. Some examples are South Carolina, which passed reforms in 2010, and Georgia, which began a series of reforms in 2012.

Obviously, prisoners released from state correctional facilities in 2005 wouldn’t have been subject to the evidence-based recidivism reduction programs in these states. What we know, though, is that Texas has a three-year recidivism rate of 21 percent measured by reincarceration. Georgia’s recidivism rate as measured by reconviction is around 27 percent. South Carolina’s recidivism rate as measured by reincarceration is 23.1 percent.

Because the group that BJS tracked is limited to prisoners released in 2005, it masks a continued decline in recidivism in later years. The Pew Charitable Trusts recently released data from the 23 states in recent days showing that the recidivism rate among prisoners released in 2012 declined by 23 percent.

“In January 2016 a former drug dealer named Wendell Callahan brutally murdered his ex-girlfriend, Erveena Hammonds, and her two young daughters. But it shouldn’t have happened. Initially sentenced to prison until 2018, he was released in 2014 because of a law that retroactively reduced his sentence.”

Everyone agrees that this is a tragedy that shouldn’t have happened. Callahan had a particularly troublesome past and lengthy criminal history that prosecutors chose to ignore when signing off on his release. The fact is that Callahan shouldn’t have been released.

Derek Cohen of Right on Crime wrote about Callahan and his heinous crime. “This decision was made in regards to risk-agnostic release policies and, since the abolition of federal parole in 1987, the government had no mechanism by which to monitor Callahan to ensure he was complying with release terms,” Cohen explained. “The counter to such policies would not be to eliminate release in all respects, but to ensure that release is responsive to offender risk and that such offenders are able to be monitored.”

“Virtually no one goes to federal prison for ‘low-level, nonviolent’ drug offenses, especially mere drug use or possession. In 2015, there were 247 inmates in federal prison for drug possession. In these rare cases, the inmates usually pleaded down from a more serious offense. In the extreme case of a manifestly unjust sentence, the pardon power is a better instrument of justice than broad sentencing reductions. President Trump has shown himself more than willing to intervene to redress such cases.”

Actually, the report Cotton cites isn’t doesn’t reference 2015 statistics. The report was released by the Bureau of Justice Statistics in October 2015, but the numbers are from the end of FY 2012. The table in which the 247 figure is found literally says in bold letters: “Federally sentenced offenders in the Federal Bureau of Prisons with linked U.S. Sentencing Commission records, by primary offense category, fiscal yearend 2012.”

Freedom Partners has already noted this, but it’s worth repeating. Data from the U.S. Sentencing Commission shows that nearly 2,300 people were sentenced for simple drug possession at the federal level in FY 2015. For FY 2012, the U.S. Sentencing Commission reports that 1,450 people were sentenced for simple possession.

“Some fiscal conservatives believe that America spends too much on the prison system. Yet the Bureau of Prisons costs taxpayers less than $8 billion a year, or about 0.2% of the entire federal budget.”

The federal government spends too much in general, not only on prisons. Keep in mind that the federal government will, according to projections from the Congressional Budget Office (CBO), run a budget deficit of $804 billion this year, $981 billion next year, and more than $1 trillion in 2020.

Because of the ability of Congress to cut spending, the United States faces serious fiscal problems. Cotton has contributed to these problems. In February, he voted for a budget that busted the spending caps by nearly $300 billion over two years. Because Congress is unlikely to rollback these spending increases, Cotton’s vote for the budget paves the way for even higher budget deficits than the CBO has projected in 2020 and later years.

Direct to the Cotton’s comment about funding for the Bureau of Prisons (BOP). Yes, BOP’s budget was less than $8 billion in FY 2017. That represents about 26 percent of the Department of Justice’s overall budget. BOP’s budget has grown dramatically over the past few decades, in large part due to an overreliance on incarceration. This growth has crowded out funding for law enforcement and other necessary programs.

Congress should be looking for ways to reduce spending. Recidivism reduction programs are one way to do that. The criminal justice reforms in Texas are responsible for $3 billion in savings. Between 2008 and 2016, according to the Pew Charitable Trusts, Texas saw a 16 percent decline in imprisonment and a 29 percent drop in crime. Obviously, modest front-end sentencing reforms would also save money. But the Texas model shows that we can reduce the prison population and increased public safety.

“Congress should improve access to faith-based and other antirecidivism programs in federal prisons. American families deserve safe communities and protection from drugs and crime. Criminals, especially first-time offenders who grew up in rough environments, deserve second chances—once they have done their time.”

We agree. But Cotton is only paying lip service to recidivism reduction. Serious discussion of adding sentencing reform to the FIRST STEP Act is rather recent. This bill is, first and foremost, focused on recidivism reduction. When it passed the House, sentencing reform wasn’t in the bill. Still, Cotton’s staff was working behind the scenes to try to kill the bill.

A Politico story from May 18 explained that Cotton approached law enforcement groups in an effort to affect the outcome of the vote on FIRST STEP Act in the House. According to the story, “two leading law enforcement groups discuss[ed] a call by Cotton’s office this week for letters of opposition on prison reform ahead of a White House summit...on the issue.”

If Cotton truly cares about recidivism reduction, he has a strange way of showing it.