sen. cotton | Legal Information Services Associates LLC

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

AND YOU WONDER WHY…

Oliver Cromwell threw out the Rump Parliament with criticism that seems altogether contemporary, given the diatribes that come from the Right against the Left and the Left against the Right. But we tend to be single-issue voters, so our interest is not so much pro-Trump or anti-Trump as it is pro-common sense on sentencing reform.

A few weeks ago, we reported that Rex Tillerson might get dumped as Secretary of State, a matter of little importance to most of us except that the shuffling that might occur as a result would move Sen. Tom Cotton (R-Arkansas) to the CIA.

For those of you who yawned at our report on Potomoc machinations, the following report may explain our enthusiasm for moving Sen. Cotton as far from a vote on sentencing reform as he can get. Legislation that would update and overhaul the nation’s juvenile justice system has stalled over a single Republican senator’s concern over whether youths should be locked up for low-level status offenses. The bills, already passed in the House and Senate (and now in conference committee to smooth out differences), have come to a screeching halt because of one senator – Tom Cotton.

Sen. Cotton likes seeing children thrown into kiddie jail, and he has thus long opposed measures that would keep youthful offenders from being locked up for violating piddling offenses like curfew and school attendance. In fact, he was able to see that the Senate version of the Juvenile Justice Delinquency and Prevention Act did not soften laws that jailed minors for insignificant offenses. But the House version phases out all incarceration for such “status offenses” — including judicial orders — over the next three years.

Now, Sen. Cotton has refused to let the very bipartisan bill go to conference without a guarantee that the status offenses provision is a dead issue. “We have to get around Cotton, who won’t move,” said Marcy Mistrett, chief executive officer of the Campaign for Youth Justice, which supports the House bill. “He’s been very clear on that.”

Staffers for Reps. Jason Lewis (R-Minnesota) and Virginia Foxx (R-North Carolina) have been working to resolve Sen. Cotton’s concerns, a GOP House aide said.

Rep. Lewis and co-sponsor Rep. Bobby Scott (D-Virginia), “are encouraging the Senate to move quickly to conference so that we can iron out the small differences between the two bills, and get the president a bill with vital reforms to the juvenile justice system.”

That, in a nutshell, is why Sen. Cotton, who was opposed to the Sentence Reform and Corrections Act of 2015 a year ago, is so toxic to the chances of sentencing reform in the next few months. New York Times columnist and curmudgeonly conservative William Safire once was criticized for calling President Nixon a pimple on the ass of progress. He apologized, admitting that his description was wrong. “I should have said ‘boil’,” he ruefully admitted.

Thus to Sen. Cotton.

Juvenile Justice Information Exchange, Sen. Cotton Blocking Juvenile Justice Update Bill from Conference Committee (Dec. 15, 2017)

– Thomas L. Root

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

IT’S AN ILL WIND…

A 500-year old proverb holds that it’s an ill wind that blows no one any good. In other words, even a lousy turn of events may benefit someone.

The story broke last Thursday that President Trump is considering dumping Secretary of State Rex Tillerson and replacing him with CIA Director Mike Pompeo. There is a lot of media hand-wringing over the plan to remove Tillerson, who has been a much better Secretary of State than the pundits predicted, but for our purposes the silver lining is that moving Pompeo to the State Department would create a vacancy at the CIA. Government officials familiar with White House thinking said the CIA slot could be filled by Sen. Tom Cotton (R-Arkansas), one of the President’s staunchest Congressional foreign policy defenders and a criminal justice hardliner.

Those who remember the sentencing reform debate last year may appreciate Reason.com’s explanation that Sen. Cotton “has a nasty record of taking any number of authoritarian, anti-liberty positions. Getting him out of the Senate could arguably be an improvement in terms of lawmaking. He has been a supporter of harsh mandatory minimum federal sentencing for drug crimes and has stood in the way of reforms of the criminal justice system… Cotton has been no friend of freedom as a senator.”

It may even be too much of a good thing. Sen. Cotton has been so in tune with the President’s authoritarian urges that some Administration officials told the New York Times last week that there is concern that he’s more valuable to Trump in the Senate. If Sen. Cotton leaves the Senate to head the CIA, Arkansas Gov. Asa Hutchinson, a Republican, would name a replacement to serve until next fall. Hutchinson has not been terribly thrilled with the way Trump has been handling himself as president, and may not nominate someone as reliably right-wing as Sen. Cotton.

Sentence reform has not made much progress this year while Congress has been focused on health care and tax reform. But as Sen. Mike Lee (R-Utah) noted a month ago, the Sentencing Reform and Corrections Act could receive 70 votes in the Senate if it ever comes to a vote. Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog last Friday that “I think Senator Cotton is one big reason the Sentencing Reform and Corrections Act seems unlikely to get a vote in the Senate in the near future. But if Senator Cotton becomes CIA Director Cotton, maybe these political dynamics change for the better for those eager to see sentencing reform enacted in Congress.”