Republican senator Tom Cotton of Arkansas is in a precarious position. He has taken on the Trump Monster, both sides of it, left and right. That means he’s at odds with Jared Kushner, President Trump’s son-in-law and the leader of the family’s left wing. The president himself constitutes the right wing.
At issue between the Trumps and Cotton is prison and criminal sentencing reform. Kushner is the champion of a reform bill that also has the backing of GOP Senate heavyweights like Chuck Grassley of Iowa and Lindsey Graham of South Carolina. Many Democratic senators favor it too. And the liberal establishment is likely to go along.
The president had been a skeptic, or at least sounded like one, until endorsing the bill two weeks ago. That was not exactly a surprise. Even for presidents, blood runs thicker than ties to political friends. Cotton is one of Trump’s closest allies in Washington.
Cotton has been criticizing the reform proposal almost from the moment he was elected in 2014. He calls it a “jailbreak” proposal. He rejects the idea, promoted by liberals, civil rights groups, many libertarians on the right, and the media, that the country has a “mass incarceration” problem—that is, too many prisoners and too many overcrowded prisons. Not so, Cotton says. “If anything, we have an under-incarceration problem,” he said in a speech in 2016.
“Some members of Congress would reduce mandatory minimum sentences for drug traffickers and other violent felons, while giving liberal judges more discretion in sentencing again,” Cotton said. “These policies are not merely wrong. They are dangerous. They threaten a return to the worst days of the 1990s, when law-abiding citizens lived in fear of their lives.”
Cotton was referring to an aspect of criminal justice reform to which supporters don’t have a compelling answer: the cycle of liberal reform followed by rising crime, then by new calls for strict law enforcement and tougher sentencing. One answer is reducing recidivism, the return to crime after release from prison.
To put it mildly, past efforts have not been notably successful. Kushner concedes as much. “If recent trends hold, almost half of federal inmates who were conditionally released will be re-arrested within five years of release and more than 75 percent of state offenders who were released on community supervision will be re-arrested within five years of release,” he and White House economist Tomas J. Philipson noted in a USA Today op-ed last week.
Yet Kushner is eager to try again. Indeed, the president already has begun “bringing together more than a dozen federal agencies to identify ways to reduce recidivism, enhance the reentry process, and improve public safety,” he says.
Kushner should be taken seriously. He’s not a newcomer to crime and prison issues. When his father, Charles Kushner, was convicted of tax evasion and illegal campaign contributions and spent a year in federal prison in Alabama, Kushner visited him on many weekends. He was 25.
Nor has he been in over his head in meetings with members of Congress and crime experts. And he hasn’t balked at consulting with groups sure to be suspicious of Trump administration efforts to improve prison conditions, reduce sentences, and rely on community programs to aid reentry and rehabilitation programs.
Kushner doesn’t sugarcoat earlier efforts. “There are many programs, such as in education, where the evidence is less conclusive and merits further exploration,” he said in his USA Today piece. “There is some evidence to suggest that more educated prisoners are less likely to become recidivists. For example, those who have not completed high school have a 60 percent chance of re-incarceration, while college graduates have a 19 percent chance.”
Though Kushner would seem to have the upper hand in the battle over the reform bill—particularly with his father-in-law’s support—Cotton may be in the stronger position. Cotton says the bill has moved steadily to the left when new provisions were added. He’s right about that.
The bill provides “the clearest path forward that we have had in years” to shorter jail terms in drug cases, Holly Harris, the executive director of the Justice Action Network, told the New York Times. Many members of Congress would be voting for the first time on legislation “that turns away from the lock-’em-up-and-throw-away-the-keys policies of the 1990s,” she said. “That is groundbreaking.”
This would include dealers in the deadly synthetic opioid fentanyl, whom the president has repeatedly denounced. Nonetheless, the bill he’s promising to sign into law “mandates the early release from federal prison of most federally incarcerated fentanyl dealers,” PowerLine’s Paul Mirengoff says.
Cotton doesn’t appear to have a large coalition that opposes the reform bill. But looks can be deceiving. There’s a reason Senate majority leader Mitch McConnell is wary. Polls show the public opposes more lenient penalties for traffickers in serious drugs. McConnell declined to schedule a floor vote before the midterm election and may decline again in the lame-duck session.
So it turns out Cotton isn’t in a precarious position after all, not with the public on his side.
