Sen. Tom Cotton (R–Ark.) Sen. Tom Cotton (R-Ark.) is a tough-line drug fighter who resists any attempt to lower sentences for those convicted of distribution arbitrarily prohibited intoxicants. Cotton voted against FIRST STEP Act. This modest package of reforms was backed in part by President Donald Trump. It passed both the House and Senate with overwhelming support. He was also one of 12 senators to vote against it. It is therefore not surprising that Cotton criticized Supreme Court nominee Ketanji brown Jackson’s decision, to lower Keith Young’s sentence for being a heroin/fentanyl dealer under a sentencing clause that was expanded by the FIRST STEP Act.
This is the Republican National Committee’s (RNC), official website. describedCotton and Jackson exchanged information about Young’s case at her confirmation hearing. “Ketanji Brown Jackson was asked if she had reached out to victims of heroin traffickers. Jackson replied that there were none. We’ll soon see that this gloss can be misleading and Cotton’s question in such a context was ridiculous.
It is a common theme with Republican efforts to present Jackson (and Democrats in general) as soft-on crime. Cotton’s arguments with Jackson regarding the Young case show a total disregard for context and policy analysis, much like Republican critiques of Jackson’s sentences.
We must first consider the legal context of Young’s case to judge Cotton’s critics. He was found guilty of possessing at least one kilogram of heroin and intending to distribute it. According to 21 USC 851, sentence enhancements are available for defendants who have been convicted of drug offenses. Jackson, at her confirmation hearing, recalled Young’s previous conviction “10 or fifteen years prior” and that it was a minor sentence. Jackson stated that Young had “no criminal record” since the “old sentence.” Jackson, who was then a judge at the U.S. District Court, District of Columbia, “followed the law” which stated that he must be in jail for 20years. Young received a double sentence when the Section 851 Amendment was activated. Young then had to serve a minimum of 20 years.
Congress passed the FIRST STEP act later that year. This allowed federal prisoners to direct petition courts for sentence reductions, based upon “extraordinary, compelling, and convincing reasons”. Motions to reduce sentence lengths used to have had the Bureau of Prisons approve them. The provision that applies to senior prisoners with a minimum of 30 years’ service is known as “compassionate discharge”. Although successful motions may not always lead to immediate release, they can just result in a quicker release.
Young, who was a federal prisoner at the time of the COVID-19 outbreak caused an increase in compassionate release motions. Young asked Jackson for his release, basing it on COVID-19’s threat. He argued that Young was more vulnerable than others because of his asthma. Jackson refused to grant this request. Jackson refused to accept that request. However, she reduced Young’s sentence by 10 years because of an “extraordinary” and compelling reason. The FIRST STEP Act had modified the Section 851 Enhancements requirements so Young’s previous conviction would not have been able to trigger that section. Although the change did not apply retroactively, Young would have served half his sentence if he was sentencing half a year later.
U.S. When the U.S. Sentencing Commission examined compassion releases, the USSC found that COVID-19 danger was the leading reason given for prisoner motions. But in 3 percent of cases, judges cited “sentence-related reasons,” typically based on the concern that the prisoner’s term would have been shorter under subsequently enacted reforms that were not retroactive—the same rationale that Jackson cited when she reduced Young’s sentence. These cases saw an average of nearly 20 years’ reduction.
USSC points out that courts in circuit disagree on whether law changes should be made
They are an acceptable basis for sentence reduction. There is an issue of legal interpretation. Cotton, however, argued that Jackson tried to retroactively make retroactive a sentencing reform Congress decided to not make retroactive. Cotton said, “You decided to rewrite law to show sympathy to a drug kingpin involved in fentanyl.”
Even as Jackson accused Cotton of disregarding Congress’ decision, Cotton said the FIRST STEP Act was “a terrible error.” It meant that Congress made a mistake when it decided on the appropriate punishment for Young. Cotton believes it’s patently absurd that Young, having served only two-and-a half years, will be “released seven and a quarter years from now,” instead of being sentenced for another ten years. However, Congress unanimously voted that Young’s defendants should be sentenced to 10 years instead of 20.
If the war against drugs is not fundamentally just, then you will likely disagree with either of these penalties. Jackson didn’t believe people shouldn’t be jailed for selling drug. She argued that the Congress’s decision meant that 10 years would be a better sentence for this defendant. Cotton clearly disagrees but also doesn’t agree with nearly all his colleagues in Congress about the severity of punishment for drug offenders.
Cotton, frustrated at Jackson’s lack of sharing his sense of justice asked Cotton, “Before granting this fentanyl Kingpin’s motion for reduction of his sentence,” This is an odd question in this setting.
Cotton is right. I understand it. Given the importance that drug addiction plays in drug-related deaths, cotton believes that selling psychoactive substances which Congress has banned is not an innocent crime. Cotton supports a prohibition policy that leads to a black market where potency can be highly unpredictable. The same logic could also condemn those who sell cigarettes or alcohol, which both are responsible for more deaths than heroin and fentanyl each year. However, even if Cotton believes in morality (which Jackson seems to believe she does), what was her answer to Jackson’s question?
Jackson started politely, “Senator,” and said: “Senator,” I’m grateful that you allowed me to discuss Mr. Young’s situation.” Cotton interjected, asking her a simple question. “Did you contact the victims of his case?”
It was difficult to answer. Jackson said that it was not a simple question because Young’s case didn’t involve identifiable victims. Jackson also stated: “I didn’t contact the victims in Young’s case, because there weren’t any victims. Young committed a drug crime. He did not identify any victims.
It was all just a stage for Cotton’s grandstanding. Jackson was rightly admonished by he: “Drug crime are not an unpunished crime.” “One hundred thousand Americans died from overdoses in the last year.”
Jackson didn’t claim that drug-dealing is a “victimless” crime. She had merely pointed out the absurdity of Cotton’s question, and she tried to reiterate her point: “There was no one to contact, because there were no identifiable—” Cotton interrupted her again, returning to his critique of her decision to resentence Young.
This was the RNC’s gotcha moment. This exchange shows the demagoguery that preens drug-warriors who are mindlessly punitive, such as Cotton.