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Senator Cotton Speaks on the Senate Floor About Criminal Justice Reform

February 9, 2016

Today, I want to discuss the Sentencing Reform & Corrections Act that has been voted out of the Judiciary Committee.

There is much debate about the wisdom of this bill. That is, like most bills we discuss in this chamber, a judgment call. But there cannot be debate over the facts of this bill. We have to be very clear on what this bill, by its own text, is designed to do.

Proponents of the bill often invoke four phrases to describe the felons to be released under the terms of the bill: "first-time," "non-violent," "low-level," "drug possession" offenders. Yet none of those four descriptors is accurate.

By its text, the bill will apply sentence reductions not to first-time offenders, but to repeat offenders-some many times over. These are felons who have made the conscious choice over and over again to commit crimes.

By its text, the bill will not just apply to so-called "non-violent offenders," but to thousands of violent felons and armed career criminals who have used firearms in the course of their drug felonies or crimes of violence.

By its text, the bill will reduce sentences not for those convicted of simple possession, but for major drug traffickers, ones who deal in hundreds of thousands of dollars' worth of heroin or thousands of pounds of marijuana. And let's be clear: drug trafficking is not "non-violent," as the bill's proponents often claim. It's an industry that's built on an entire edifice of violence, stretching from the narcoterrorists of South America to the drug-deal enforcers on our city streets. If you think dealing drugs on a street corner while armed with a gun is a "non-violent" offense, you probably live in a rich suburb or a gated community.

By its text, this bill will apply to felons convicted as juveniles of murder, rape, assault, or other crimes for which they were justly tried as adults.

By its text, this bill will apply to repeat felons whose past crimes include kidnapping, carjacking, armed robbery, and other violent crimes.

By its text, this bill will make eligible for early release into America's communities thousands of drug traffickers and other violent felons. And when we catch such criminals going forward, we won't be able to keep them locked up for the same sentences.

It's been reported that the bill's sponsors are preparing to release a revised bill, one that would address some of these many shortcomings. Regarding this news, I first want to thank the sponsors for acknowledging that the bill as passed by committee does in fact apply to serious drug traffickers and other violent felons. I look forward to evaluating the new legislative text, and I hope it addresses these problems. Until then, we can only examine more closely the bill as passed by committee.

The consequences of this bill are all too predictable. Sadly, more than half of released prisoners are rearrested within a year and 77 percent are rearrested within five years. We can be sure, then, that we will see more crimes committed by those who are released early. That is indisputable. And those new crimes will wreak havoc on the citizens, families, and communities in each of our states.

This risk is not hypothetical. Sterile statistics do not adequately convey the severity of the threat of mass recidivism. Last month, in Columbus Ohio, a man named Wendell Callahan brutally killed his ex-girlfriend and her two young daughters. Callahan murdered Erveena Hammonds, her 10-year-old daughter Anaesia, and Anaesia's little sister, 7 year-old Breya. A frantic 911 from the scene said the two girls' throats had been slit.

These murders were an atrocity, and they were completely avoidable. Wendell Callahan walked out of federal prison in August 2014. But his original sentence should have kept him in jail until 2018. If he had been in jail instead of on the streets, a young family would be alive today.

Callahan walked out of jail early because the U.S. Sentencing Commission reduced sentences retroactively for hardened criminals like him. The Commission first reduced sentencing guidelines in 2007. It did so again in 2010. And again in 2014. That is three major systemic sentencing reductions in the span of seven years. The result? 46,000 federal convicts will walk from jail early. Wendell Callahan was one among that 46,000. There will be many more like him. And while we pray-against all odds-that none of them go on to commit a triple-murder like Wendell Callahan did, or any other heinous crime, I'm afraid our prayers will go unanswered, at least in part.

The Sentencing Commission is an independent judicial agency that provides uniform sentencing guidance to judges. Congress didn't have a hand in those sentencing reductions. But with the Sentencing Reform & Corrections Act, the Senate would impose a fourth major sentencing reduction within eight years-one that is deeper and broader than the reductions imposed by the Sentencing Commission.

This is badly misguided. The Senate would be launching a massive social experiment in criminal leniency without knowing the full consequences of the first three reductions imposed by the Sentencing Commissions. This experiment threatens to undo the historic drops in crime we have seen over the past 25 years.

That drop in crime rates was not an accident. It was the result of higher mandatory minimums put in place in the 1980s coupled with vigilant policing strategies pioneered by scholars like Jim Wilson and elected leaders like Rudy Giuliani and other American mayors and law-enforcement officials. The combination of mandatory minimums and innovative policing is not a haphazard anti-crime strategy. It is one that was reached through tough trial-and-error performed at local, state, and eventually federal levels. It is one that arose from advocacy that originated in the communities and the cities that were hardest hit by the drug trade. And it is one that has a proven record of success, not just in terms of crime rates, but in terms of lives saved, families protected, and communities healed.

The connection between higher mandatory minimums and lower crime is often lost on those unfamiliar with this history. In 1997, the New York Times reported, "Crime keeps on falling, but prisons keep on filling." One year later, in 1998, the Times added, "Prison population growing although crime rate drops. In 2004, the Times reiterated yet again, for good measure, "Despite drop in crime, an increase in inmates. You can't make this stuff up, yet it is real and appears to be all-too-soon forgotten.

Like almost all conservative achievements, the reduction in crime over the past generation is built on the hard lessons of experience. We should not lightly yield the criminal-justice wisdom accumulated over decades to the passing fashions of current thinking. We should not blithely move from a proven strategy of accountability and vigilance to an experimental theory of leniency and impunity. We should not trade away concrete, hard-won gains when the results may be devastating to American communities.

The Senate, and the American people, need to consider any change to our sentencing laws with full information. We need to know if this sentencing-leniency bill will return us closer to the days of the `70s and `80s when our cities were besieged by the drug trade, and whole communities were being rotted out as a result. We need to debate sentencing changes with all the data available to us. We need to do this with eyes wide open.

That is why today-together with Senators Hatch, Sessions, and Perdue-I am introducing the Criminal Consequences of Early Release Act. This is a simple, but very needed bill. It will require the federal government to report on the recidivism rates of the 46,000 federal inmates to be released early under the Sentencing Commission's reductions. And it will require the same reporting for any prisoners released early under any future reductions passed by Congress.

The report required by this bill will make clear how many crimes are being committed by released felons.

It will make clear what types of crimes-from drug trafficking to assault to robbery to murder-are being committed by these felons.

And it will make clear in which states these crimes are occurring.

Currently, this type of data is extremely hard to compile. It is not reported by the Bureau of Justice Statistics, and any information we do have comes through anecdotes and sporadic media reports.

Full information on the criminal consequences of early release must be published in detail. Before voting on any bill to reduce sentences, the members of this chamber need to understand fully the criminal consequences of prior sentence reductions.

And to hold the members of this chamber accountable for their votes, the American people need to understand how their communities are being affected. When the federal government decides to release thousands of violent criminals on to the streets, no legislator or official should be able to plead ignorance. If people are being killed, drugs trafficked, property stolen, and children kidnapped by felons who should have been in prison instead of on the streets, then the people in our states and communities deserve to know that.


I want to be clear. To those who support the Sentencing Reform & Corrections Act, we are not in full disagreement. Like you, I oppose jail for first-time drug users with no prior record. It's vanishingly rare for such offenders to be prosecuted and jailed in the federal system. But it remains true that the better option for them-particularly if they are addicts-would be drug treatment. Like you, I believe that our prisons should not be an anarchic jungle that is a danger to both prisoners and corrections officers. Like you, I believe that those prisoners who will someday complete their sentences and re-enter society should be given the chance to rehabilitate and redeem themselves while in prison so that they do not recommit crimes once they are released. Like you, I do believe that there exists the possibility of an unjust sentence, one that is so out of proportion that it shocks the conscience.

So I suggest, let's work on that bill. Let's work on a bill that identifies and addresses all first-time drug possession inmates in the federal system, but keeps drug traffickers and other violent offenders in prison to finish their sentences. Let's improve prison conditions and give prisoners a shot at redemption and a better life. And, if you wish, let's work on a bill to speed the consideration of commutation applications.

If we want to undo unjust sentences, we can help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences. But what we should not do is use the blunt instrument of releasing thousands of violent felons and major drug traffickers. The president has the constitutional power to remedy unjust sentences. But you know what power he doesn't have? The power to bring back to life the victims murdered by prisoners who are released early or sentenced inadequately.

In the discussion over the Sentencing Reform & Corrections Act, there is much talk of legacy, and in particular the legacy of President Obama after he leaves office.

If considerations of legacy should factor into our debate, I would close with this observation: legacies are not necessarily positive. They can be negative and deeply tragic. If supporters of this bill and President Obama are wrong-if this grand experiment in criminal leniency goes awry-how many lives will be ruined? How many dead? How much of the anti-crime progress of the last generation will be wiped away for the next?

Those are the questions we must ask as we consider this bill. And if we ask them-honestly, soberly, and with full information-we will invariably be led to one conclusion: we should not grant release to thousands of drug traffickers and other violent criminals, nor should we shorten their sentences in the future.