Utah Sen. Mike Lee
took to social media to accuse fellow Republican Tom Cotton of spreading “100% Fake News” of criminal justice reform efforts.

With Donald Trump — perhaps under the influence of Kim Kardashian, Jared Kushner and others — at least showing an openness to modest steps to curb mass incarceration, Cotton can now rightly claim the crown as the most vociferous demagogue in the nation on criminal justice. Cotton believes that the nation has an “under-incarceration problem.”


Lee and a number of other key Republicans are hoping to pass the First Step Act, a bipartisan bill that would reduce thousands of sentences, during the lame duck session before Democrats take control of the House (Democrats would likely push for a more comprehensive bill). Trump announced his support for the bill last week. The ACLU and a number of criminal justice reform groups also back it, as well as key Democrats such as Sen. Cory Booker. Booker opposed a previous House version of the bill as inadequate and fought to add new provisions; while Booker clearly believes that there is more to be done, he concluded that the bill in its current form is a worthy, well, first step.

The First Step Act would retroactively apply the Fair Sentencing Act, which ended the disparity in sentencing between crack and cocaine, to more than 2,000 federal prisoners still serving time on sentences for crack offenses issued before the Fair Sentencing Act was passed in; give judges more discretion to choose not to apply mandatory minimum sentences; reduce mandatory minimum sentencing for people with past nonviolent drug offenses; increase opportunities for rehabilitation, education, and training; encourage small reductions in sentences for good behavior, which would apply retroactively; and push various other efforts to protect the rights of prisoners, such as prohibiting the shackling of pregnant women and placing prisoners in facilities closer to their families.


Cotton says these modest reforms will unleash violent criminals on an unsuspecting American public. Lee took issue with Cotton’s comments, arguing that he was wildly exaggerating what the bill actually does. Cotton clapped back. And Lee responded that he was missing the point. Their basic dispute is over a provision that tweaks the amount of “good time” credit prisoners can earn to reduce their sentence. This would apply retroactively and could give prisoners an additional week of “good time credit” per year of good behavior. Ultimately the decision about whether to apply credits to allow an earlier release would still be up to the Bureau of Prisons.

Ultimately, the argument between Lee and Cotton is probably more about first principles  (or rank politics) than in-the-weeds policy. Cotton wants to lock them all up, throw away the key, and never look back. Lee believes that this approach has proved to be a disaster.

Large bipartisan majorities of Americans support comprehensive criminal justice reform and efforts to reduce the nation’s prison population. But such efforts will always be politically tricky, in no small part because of demagogues like Tom Cotton.