— Cotton, quoted in Politico, Jan. 25
The bipartisan effort to overhaul the criminal justice system is an issue to watch this year, as a pair of sentencing reform measures make their way through both chambers.
As Sen. John Cornyn (R-Tex.), one of the main authors of the Senate’s legislation, brings renewed attention to the Senate bill, Cotton is leading the charge against it. The Sentencing Reform and Corrections Act of 2015 passed the Senate Judiciary Committee in the fall, and has bipartisan support that includes Koch Industries, Senate Judiciary Chairman Chuck Grassley (R-Iowa), the American Civil Liberties Union and the White House.
The bill aims to alleviate over-incarceration in federal prisons, by reducing the length of mandatory minimum sentences and focusing federal resources on felons who commit violent crimes and serious drug felonies. The point is to make sure that the punishment fits the crime, especially for certain low-level, nonviolent offenses involving drugs and firearms. The effectiveness of mandatory minimums is beyond the scope of this fact-check.
Cotton argues that the bill would lead to “thousands of violent felons” being released early or having their sentences reduced as a result of this legislation. Is that correct?
The legislation has a lot of complicated elements, but there are four main proposals that apply retroactively to current eligible prisoners.
- Section 101: It adjusts the types of prior drug convictions that trigger mandatory minimum sentences so that it targets repeat offenders in danger of recidivism. It narrows the type of prior drug convictions to “serious drug felonies” while adding “serious violent felony” to the list of prior offenses that trigger mandatory minimum terms. Overall, this section reduces the mandatory minimums imposed on repeat offenders — reducing life sentences to 25 years, and 20-year sentences to 15 years.
- Sections 104 and 105: They address “stacking” of counts that lead to lengthy sentences after the minimum sentences of each count are added together. For example, a defendant convicted of several counts from a single armed robbery crime spree could face a minimum 100 years in prison after the counts are stacked, according to the Congressional Research Service.
Section 104 shortens firearm sentences for felons convicted of using or possessing a gun in the course of a drug trafficking crime or crime of violence. Section 105 reduces mandatory minimums under the Armed Career Criminal Act, from 15 to 10 years.
- Section 106: It allows the 2010 Fair Sentencing Act to be applied retroactively. The 2010 law raised the amount of crack cocaine that triggers mandatory minimum sentences. Under this change, people who were convicted before 2010 who trafficked in lesser amounts of crack cocaine could petition for resentencing. These inmates are convicted of drug dealing or trafficking, not of violent offenses.
A total of 11,524 prisoners would be eligible for retroactive early release under these four provisions, according to U.S. Sentencing Commission figures compiled by Cotton’s office. The breakdown:
- Section 101: 2,265 current inmates
- Section 104: 1,117 current inmates
- Section 105: 2,316 current inmates
- Section 106: 5,826 current inmates
According to Caroline Rabbitt, Cotton’s spokeswoman, the total number of eligible inmates add up to “thousands” of violent inmates. Even just using Sections 104 and 105, which deal with armed offenders, the number is in the “thousands” (3,433 inmates), she said. The rest of the eligible inmates essentially are repeat drug traffickers, whom Cotton still views as violent offenders, Rabbitt said.
“It is naive to think that dealing cocaine and taking part in its import and distribution is ‘nonviolent,’ ” Rabbitt said. “That’s a fantasy created by the bill’s supporters and no serious federal law enforcement expert would agree with it.”
This is a crucial point of difference in the debate: who regards whom as truly “violent” or “nonviolent.” For Cotton and other opponents, drug trafficking or dealing is a violent act in itself. Supporters believe there should be lesser punishment for those in the lower rungs of a trafficking ring, such as drug mules, couriers or street corner dealers.
Cotton has noted in interviews that less than 1 percent of federal inmates are convicted of simple drug possession — meaning the legislation would benefit more inmates than those convicted of a low-level, nonviolent offense.
There are several caveats to note.
Several officials pointed to the current weaknesses of the Armed Career Criminal Act, which has led to sweeping incarceration practices. The 15-year minimum sentence under this law is triggered for people who had three previous state or federal convictions for violent felonies or serious drug offenses at any point in their life, and then were found in possession of a firearm.
But the statutory definition of a “firearm” is broad, so it can apply to someone who carried an actual dischargeable gun, or carried a single bullet, advocates said. The label “career criminal” or “violent felon” mischaracterizes the 3,433 inmates eligible for release under Sections 104 and 105, the bill’s supporters said.
In many cases, this act has led to excessively severe sentencing for the crime committed, according to the Sentencing Commission. The commission recommended Congress clarify the definitions in the law and reduce its severity. More often than not, the prior three convictions are for state law violations, the CRS found.
“The short answer is, yes, it would release some violent offenders. But to characterize it that way is quite misleading overall,” said Marc Mauer, executive director of the Sentencing Project. Mauer added: “The legislation is trying to get at the overly broad nature of the definition of a violent offense.”
Plus, there’s a judicial review process to vet prisoners whose sentences are reduced. A federal judge has final discretion after a district court hearing, where the U.S. attorney and victims can object to resentencing.
That means we don’t know the actual number of inmates who would actually get their sentences reduced. And even if all of the 11,524 prisoners are granted early release, it would take place over many years.
Rabbitt noted that regardless of the judicial review, the legislation “without a doubt makes thousands of violent criminals and drug traffickers eligible for early release, and it will undoubtedly result in lower sentences going forward for such criminals.”
Far fewer than the 11,524 maximum eligible inmates would withstand the judicial scrutiny and actually benefit from this law, said Frank Bowman, University of Missouri law professor who supports sentencing reform but thinks the Senate measure doesn’t go far enough. Further, there is an unknown number of violent criminals who newly would be subject to mandatory minimums as a net result of the changes, he said.
The bill has safeguards that would not allow early release for anyone whose current offense was violent, said Marc Levin, policy director of Right on Crime. That means the offenses for which they are currently incarcerated must have been nonviolent crimes.
The Pinocchio Test
There are thousands of inmates — 11,524, to be exact — who would be eligible for resentencing under the Senate bill. But not all of them are convicted of a violent crime, and it’s unclear exactly how many of these inmates would actually get their sentences shortened if the bill became law. There are 3,433 inmates in the two sections that include people who may have been convicted of a violent felony. Even then, those inmates may be there because of a sweeping law that has been found to impose excessive sentences.
Cotton is of the opinion that drug traffickers are still “violent felons,” even people who are not technically convicted of a crime of violence. We can’t fact-check opinions, but we’ll note that “violent felons” generally conjures the image of a murderer, not a drug dealer caught illegally possessing a gun — or just a bullet.
Cotton’s claim minimizes the provisions in the bill that target actual violent offenders while alleviating excessive sentences for low-level drug offenders. The bill is intended to address over-incarceration of low-level, nonviolent offenders. Even if all eligible inmates petition for a reduced sentence, the ultimate decision is with a federal judge. Cotton creates a misleading impression of this complex legislation, and earns Two Pinocchios.
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