In defense of Tom Cotton’s critique of leniency-for-criminals legislation

Last week, Sen. Tom Cotton wrote an op-ed for the Wall Street Journal opposing the lenient sentencing legislation now under serious consideration by Congress. I summarized Sen. Cotton’s article here.

John Malcolm and Brett Tolman of the Heritage Foundation have responded to Cotton. They deny that the legislation is soft on crime.

Malcolm is a respected conservative legal analyst. I’m not familiar with Tolman, but I’m confident he is too. However, their arguments come up short.

There are two main elements to the leniency legislation: (1) significant reductions in mandatory minimums for federal drug felonies and (2) significant time reductions in sentences for felons who participate in various rehabilitation programs. Let’s consider in turn the arguments of Malcolm/Tolman on these features.

Sen. Cotton’s main argument against reducing mandatory minimum sentences is that tough mandatory minimum sentences have been instrumental in reducing crime. Malcolm and Tolman concede the point:

We agree that increased incarceration, especially of violent offenders, has contributed to an overall drop in crime since the 1980s, but criminologists debate just how much.

At the high end, William Spelman of the University of Texas estimates that increased incarceration might account for as much as 35 percent of the violent crime decline. Assuming that is so, other factors, including improved policing techniques, must account for at least 65 percent of that phenomenon.

Fine. Other factors undoubtedly have contributed significantly to the reduction in crime that followed legislation establishing tough mandatory minimums. But if the tough mandatory minimums brought about 35 percent of the reduction — or even just 25 percent — that’s an enormous number of crimes prevented. It translates into many hundreds of thousands, if not millions, of violent crimes prevented during the past 30 years.

Why depart from such a successful system? Malcolm/Tolman cite the cost of incarceration, an insubstantial portion of the federal budget, as Sen. Cotton pointed out. There is little in the federal budget, however, that should take priority over preventing violence against American citizens. As Sen. Cotton says:

After national security, the government’s most basic responsibility is to protect its citizens from crime. The costs of crime and disorder—personal and economic—far outweigh the downsides of putting serious criminals behind bars.

Malcolm/Tolman downplay the extent to which the leniency legislation will reduce criminal sentences:

Senators are currently debating the possibility of reducing the mandatory minimum penalties for second-time drug offenders from 20 years to 15 years, and for third-time drug offenders from life in prison without the possibility of parole to 25 years.

Does anyone really think that minimum penalties of 15 and 25 years are not serious?

But the combined impact of the leniency legislation’s sentencing reductions and back door reductions in time for participating in rehabilitation programs (discussed below) is major.

Based on an analysis I saw not long ago, drug felons sentenced to what currently is a 20-year mandatory minimum sentence (reserved for repeat offenders trafficking in the largest amounts) could be back in the community in as little as 7 years, 10 months (as opposed to 16 years, 1 month under current law). Drug felons sentenced to a 10-year mandatory minimum sentence (reserved for repeat offenders trafficking in significant amounts and first-time convicts trafficking the largest amounts) could be back in the community in as little as 5 years (as opposed to 7 years, 4 months under current law). And drug felons sentenced to a 5-year mandatory minimum (reserved for first-time offenders trafficking in significant amounts) could be back in as little as 2 years, 2 months (as opposed to 3 years under current law).

Less than eight years in prison for repeat offenders trafficking in the largest amount of drugs is soft on crime by any fair reckoning. And even a five year reduction of a 20 year sentence is too much, given the extremely high rates of recidivism in this population. A great many prisoners can be expected to commit multiple crimes in that five year period of freedom.

Now let’s turn to the reduced sentences for felons who participate in rehabilitation programs. Malcolm/Tolman back such reductions as a “modest incentive” for inmates to participate in such programs. The incentive may not be all that modest.

In any event, if the programs are truly effective, felons serious about rehabilitating themselves already have plenty of incentive to participate — the fact (if true) that the programs will significantly boost their chances of functioning in society without committing crimes.

Any prisoner who doesn’t think that’s incentive enough, but instead needs the promise of early release, is highly unlikely to benefit from the program (other than by getting out jail early).

Malcolm/Tolman also significantly overstate the value of the programs they tout in reducing recidivism. I discussed this issue in detail here and here.

Malcolm/Tolman mislead when they claim that only “low-risk” inmates will get out of jail early. The recidivism rates show that there aren’t many low-risk inmates in federal prisons. The only inmates who, as a class, might be low-risk are the ones who don’t need promises of reduced time as an incentive to participate in rehabilitation programs. Finding someone who will say a prisoner is “low-risk” isn’t the same thing as being low-risk.

Finally, Malcolm/Tolman oversell “home confinement.” For serious offenders, home confinement is a joke. Thomas Ascik, a career prosecutor in North Carolina, notes that “ABC documented 50 cases nationwide of murders committed by prisoners who were supposed to be confined to home with ankle bracelets.”

Malcolm/Tolman promise “close federal supervision” of prisoners released to their homes. I’m sure such promises were made in many, if not all, of the cases of those 50 “confined” murderers too. No conservative should trust that the federal government will effectively supervise and monitor the beneficiaries of this jailbreak legislation. And skepticism is all the more in order if, as Daniel Horowitz says, the bill does not put the necessary resources into home confinement because proponents want the talking point of saving money — a talking point peddled by Malcolm/Tolman.

It’s easy for the leading proponents of leniency legislation to downplay the prevention of hundreds of thousands of violent crime and to oversell rehabilitation programs, home confinement, etc. Kim Kardashian, Ivanka and Jared, Sen. Chuck Grassley, and the Koch Brothers and other fat cats who fund the Heritage Foundations aren’t going to be victims of the crimes committed by the beneficiaries of the jailbreak they advocate.

But many thousands of Americans will be. And a disproportionate number of them will be law-abiding African-Americans.

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