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The conservative approach to criminal justice:
fighting crime, supporting victims, and protecting taxpayers.

Setting the Record Straight

| August 17, 2018

In a recent op-ed published in Wall Street Journal Senator Tom Cotton (R-AR) recognized the need for federal prison reform but cautioned against sentencing provisions that have been discussed in recent weeks as possible additions to the House-passed FIRST STEP Act.

While we do not know what these sentencing provisions will end up including in the final legislation, I respectfully disagree with the senator on several points.

First, Senator Cotton correctly observes that America is in the midst of a terrible drug epidemic, citing an increase in overdose deaths mostly attributable to opioids. What Senator Cotton neglects to include in his argument is that the rigidity and imprecision of federal drug law makes little distinction from a low-level street dealer (worthy of punishment in his own right) and a kingpin such as the likes of El Chapo.

Two of the four proposals discussed would, in limited instances, allow for lower-level offenders to not be subject to additional mandatory sentencing enhancements, but still held to account with long terms of incarceration. Absent more substantive sentencing amendments, the additions proposed to the FIRST STEP Act would allow judges in very narrow cases to avoid issuing incommensurate sentences of incarceration, such as those given to first-time offender Weldon Angelos (55 years).

It also bears noting that this skyrocketing death rate has also occurred under the current sentencing regime. We can and must punish kingpins and key traffickers who conspire to poison our communities. However, our current one-size-fits-all approach has not insulated us from this scourge and left us footing the bill for punishing low-level nobodies in criminal networks at no benefit to public safety. Street dealers are like the Lernaean Hydra: for every one we take off the street, two more take their place. Right on Crime, along with other criminal justice reform advocates, is working with the Trump Administration to ensure that our law enforcement has the resources to take down drug cartels and the kingpins who lead them while also implementing proven prevention and treatment strategies to reduce demand and overdoses.

Second, Senator Cotton referenced a 77 percent nine-year rearrest rate – a staggering number to be sure – and added the dramatic flair that it was “serious nondrug crimes, such as murder and rape.” (Accurately, the DOJ report cites rearrest rate for all crime, and makes no distinction that these are “serious” crimes.) Omitted from the discussion is that through policies such as those supported by Right on Crime and its signatories, we have been able to reduce that number year upon year. Texas, for example, has a three-year reconviction rate of 36 percent.  We know what helps reduce recidivism, and those are the goals of each and every provision of the FIRST STEP Act.

The senator evokes the case of a Wendell Callahan, a violent criminal released early from prison only to murder his girlfriend and her two children.  As I wrote following the tragic event back in 2016, it was not sentencing changes that let him out two years early, it was the U.S. Department of Justice ignoring his pronounced history of violence and not objecting to his release.  This case is illustrative of the horrific disservice our prisons pose on society when they fail to rehabilitate ex-offenders under the status quo.

Finally, Senator Cotton points out that our federal Bureau of Prisons (BOP) costs the taxpayers only $8 billion each year, roughly .2% of the federal budget. As a dyed-in-the-wool fiscal hawk, I take great umbrage in the allegation that wasteful and dangerous policy, so long as only a small proportion of spending, is acceptable. Further, in the latest 2019 budget proposal by DOJ, the department is allocating nearly 30% of its own budget towards BOP. We started Right on Crime in 2010 to advance policies that protect both the taxpayer and their pocketbook, and the outcomes of no government program is above scrutiny.  Prisons are a vital contributor to our public safety, but are only one of many tools is our toolbox.  If the BOP is not achieving its intended purpose, then it, too, must be held to account as the present legislation seeks to do.

We are heartened that Senator Cotton has taken an interest in this pending legislative matter and that he views prison reform as a worthy goal.  We look forward to continuing an open dialogue in pursuit of legislation that protects public safety, reduces cost, elevates victims, and facilitates personal redemption.

 

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DEREK M. COHEN is Director of Right on Crime and the Center for Effective Justice at the Texas Public Policy Foundation. Cohen graduated with a B.S. in Criminal Justice from Bowling Green State University. He went on to complete an M.S. degree in Criminal Justice from the University of Cincinnati, where he also recently completed his Ph.D. dissertation on the long-term costs and outcomes associated with correctional programming. His academic work can be found in Policing: An International Journal of Police Strategies & Management and the forthcoming Encyclopedia of Theoretical Criminology and The Oxford Handbook on Police and Policing, and has scholarly articles currently under review. He has presented several papers to the American Society of Criminology, the Academy of Criminal Justice Sciences, and the American Evaluation Association on the implementation and outcomes of various criminal justice policy issues. Prior to joining the Foundation, Cohen was a research associate with University of Cincinnati’s Institute of Crime Science. He also taught classes in statistics, research methods, criminal procedure, and corrections.

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