Jailbreak or criminal justice reform? Tom Cotton and Mike Lee debate on Twitter

On Monday, U.S. Sens. Mike Lee, R-Utah, and Tom Cotton, R-Ark., engaged in a back-and-forth on Twitter over proposed prison reform legislation. Advocates for the bill, like Lee, hope to advance it during the lame-duck session of Congress.

Cotton is opposed to the legislation, known as the FIRST STEP Act, on the grounds that it will lead to the early release of heroin and fentanyl drug dealers. When the text of the bill was released last week, Cotton criticized the Senate for neglecting to hold hearings on the final draft of the bill.

There have been no hearings on this bill. Why are proponents afraid of hearings & letting members find out what’s in it? Maybe because it gives early release to “low level, nonviolent” criminals like those convicted of assaulting police, even with deadly weapons (USC 111(a))... https://t.co/lQnYGfF1o0

— Tom Cotton (@SenTomCotton) November 17, 2018

Or that it gives early release to “low level, nonviolent” criminals who steal passports & immigration docs from aliens who have been trafficked to keep them in captivity (USC 1592(a)). Hearings & open debate would bring needed daylight...

— Tom Cotton (@SenTomCotton) November 17, 2018

The "final" text of the FIRST STEP Act was only released yesterday, and details seem to continue to change. If it’s finalized & ready for a vote, why offer to keep changing it?

— Tom Cotton (@SenTomCotton) November 17, 2018

Lee called Cotton's short thread "100% Fake News," and said there were no new policies in the final draft of the bill compared to earlier drafts that received hearings.

I highly respect my colleague from Arkansas but everything in his tweet and this thread is 100% Fake News. 1/ https://t.co/fFeHMxLpBf

— Mike Lee (@SenMikeLee) November 19, 2018

First, the House Judiciary committee passed the First Step Act out of committee on May 9 of this year, and the Senate Judiciary Committee passed the highly similar Sentencing and Corrections Act out of committee on Feb 15 of this year. These are not new policies. 2/

— Mike Lee (@SenMikeLee) November 19, 2018

Second, and more importantly, the First Step Act does not “give early release” to anyone. Anyone claiming it does, does not understand how the bill works. 3/

— Mike Lee (@SenMikeLee) November 19, 2018

What the First Step Act does do is encourage rehabilitation by incentivizing inmates to participate in recidivism reduction programs by giving them time credits that can help them qualify for prerelease custody. 4/

— Mike Lee (@SenMikeLee) November 19, 2018

Nothing in the First Step Act gives inmates early release. It only incentivizes participation in recidivism reduction programs. At all times the Bureau of Prisons retains all authority over who does and does not qualify for early release. 5/

— Mike Lee (@SenMikeLee) November 19, 2018

If @SenTomCotton has good faith problems with this bill then he should welcome a full and open debate on the Senate floor where he can offer amendments to provisions he finds objectionable. But first this bill needs to be brought to the Senate floor so debate can begin. /END

— Mike Lee (@SenMikeLee) November 19, 2018

Cotton responded, pointing to the legislative text and arguing that the bill reduces sentences for violent offenders.

.@SenMikeLee no early release? Look at text. Eligible prisoners – including those who assault law enforcement officers with deadly weapons - earn new “time credits” for “pre-release custody or supervised release," which is why sheriffs call this dangerous. https://t.co/a8ahFebRVU

— Tom Cotton (@SenTomCotton) November 19, 2018

Look at the bill. Inmates also get early release in many other sections, including retroactive application of Fair Sentencing Act, reduced punishments for trafficking fentanyl under 841(b), and retroactive expansion of “Good Time” credits. pic.twitter.com/snCtIcHjJh

— Tom Cotton (@SenTomCotton) November 19, 2018

To which Lee responded:

Read the bill. Earning time credits does not grant an inmate release. Inmates must still undergo risk assessment and be deemed low-risk offenders. https://t.co/m8eWCyZnXa

— Mike Lee (@SenMikeLee) November 19, 2018

This is a complete subject change from the claims in your original tweets, @SenTomCotton. You clearly have some concerns with the bill, and I look forward to debating all of them on the Senate floor. https://t.co/kmDbZwPVRs

— Mike Lee (@SenMikeLee) November 19, 2018

But Cotton was not finished and on Tuesday continued to make a case against the FIRST STEP Act.

Proponents of the First Step Act have said that "nothing in the First Step Act gives inmates early release." But look at what the bill does to a fentanyl trafficker convicted of trafficking 1lb (enough to kill >100K people) under §841(b).

— Tom Cotton (@SenTomCotton) November 20, 2018

Assume this trafficker has a prior serious drug felony. Under current law, minimum 20-year sentence. Under the First Step Act, reduced to 15 years, or 5 years earlier release. pic.twitter.com/2dwUeSNd0j

— Tom Cotton (@SenTomCotton) November 20, 2018

Next, trafficker is eligible for expanded "good time" credits because bill allows offenders to earn 54 days credit for each year sentenced instead of each year served. This section is applied retroactively, too. pic.twitter.com/RIGN8BSEdH

— Tom Cotton (@SenTomCotton) November 20, 2018

Then, bill creates new "time credits" section, and trafficker can get 10 days credit per 30 spent in "evidence-based recidivism reduction programming or productive activities." 15 days if “low-risk.” This = up to 1/3rd of the sentence, or 5 out of 15 years. pic.twitter.com/4gl4KzJbAo

— Tom Cotton (@SenTomCotton) November 20, 2018

Some offenders ineligible for this, but fentanyl traffickers are eligible. Only fentanyl organizers—under 10% of traffickers—are excluded. This was sticking point in negotiations. @NationalSheriff & I wanted all excluded. Drafters said no. pic.twitter.com/z9OsaPmkkz

— Tom Cotton (@SenTomCotton) November 20, 2018

Look at vague definition of "productive activities" that result in early release "time credits." Bureau of Prisons said this could include playing softball, watching movies, or playing cards. pic.twitter.com/hxQZlrKtE2

— Tom Cotton (@SenTomCotton) November 20, 2018

If the trafficker in “low-risk” category, he can use credits to transfer into "pre-release custody or supervised release." In other words, he's out early. If high-risk, trafficker still gets 25% 841(b) reduction. pic.twitter.com/Z52w29VLZL

— Tom Cotton (@SenTomCotton) November 20, 2018

This trafficker went from 20-year sentence to out in about 10 years (or less, if combined with programs already in law) if low-risk and out in 15 years if high-risk. Yet proponents claim there’s “no early release.” Should we not hold a hearing on this bill?

— Tom Cotton (@SenTomCotton) November 20, 2018

Lee wants to bring the legislation to the floor so debate can begin. Cotton wants new hearings on the bill before the bill is brought to the floor for debate. Senate Majority Leader Mitch McConnell has already told President Trump he doesn't expect the Senate to have enough time to bring the bill to the floor during the lame-duck session of Congress.

Why not hold new hearings and then have a debate outside Congress? Couldn't Cotton and Lee have a debate on the bill in the same way that Sens. Bernie Sanders, I-Vt., and Ted Cruz, R-Texas, debated health care policy on CNN?

Most Americans won't pay attention to floor debate in the Senate, sadly. And if the bill is brought to the floor, it may be passed before Cotton's concerns are addressed. Or maybe Lee is right, and Cotton's concerns are overstated and don't need to be addressed. A publicized debate on some media platform would allow a larger audience of the American people to be informed. It would be transparent, it would be educational, it would be beneficial for the health of the American republic.

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