How Tom Cotton’s hard line on crime took over the Republican Party

When prison reform was in vogue, Sen. Tom Cotton, R-Ark. was against it. In 2018, he led the GOP opposition to the First Step Act, a bipartisan effort to reduce some sentences and let some criminals out of prison. Just 11 other Republicans sided with him against the Trump administration, which celebrated the bill’s passage as something Democrats never could have pulled off. Four years later, Cotton said in an interview, plenty of his colleagues wish they could take that vote back.

AMERICANA: You’ve talked about ideas that are popular in “the faculty lounge,” and you spent some time in the Ivy League yourself. When did you first encounter the idea that it was ipso facto a problem to have too many people in prison?

COTTON: The first time I remember this being at the forefront, as a political issue, was in my first year in the Senate in 2015. The Senate Judiciary Committee passed a bill that would substantially decrease prison sentences – would let thousands, if not tens of thousands, of convicts out of jail.

I did not know that the Republican Party stood for such a thing. On the Columbus Day recess I was on a co-del with Mitch McConnell, and I asked him: What the hell? When did the Republican Party become the party of letting felons – hardened, serious felons – out of prison? McConnell said, “Well, I have a lot of Republican members who voted for that bill and are very passionate about it. And I don’t have any Republican members at the moment who are outspoken opponents to it.” And I said, “I think I found your man.”

AMERICANA: You’ve said that the reformers, while wrong, are well-intentioned.

COTTON: There are a handful of politicians in Congress who have libertarian leanings. They don’t like state power in most contexts. They have philosophical objections to long prison sentences, especially long prison sentences for drug crimes, because they object to the criminalization of drugs to begin with.

Unfortunately, you see the same dynamic in a lot of states. And at that level, you have the added pressure of the state budget. It’s not a major concern for the federal government, because the Bureau of Prisons and our law enforcement budgets are relatively small parts of the federal budget.

AMERICANA: During the pandemic, DOJ let more than 11,000 people out of jail and confined them at home. Seventeen of those people have been charged for crimes they committed after getting out. I’ve seen criminal justice reform advocates point to that and say, look, here’s proof you don’t need all of these people to stay in prison.

COTTON: The victims of those 17 criminals probably viewed it differently. Look, the 11,000 people sitting at home right now include 6000 drug offenders. Drug trafficking is a classic crime that you can do from the comfort of your own home even while you’re wearing an ankle bracelet. And the new director of the Federal Bureau of Prisons said she can’t assure us that felons who would otherwise be sitting in a federal prison are not conducting criminal activities from their house. As I said to her: I assure you that many of them are.

AMERICANA: The Biden administration – during a campaign, to be fair – has proposed hiring 100,000 new police officers, which Republicans have supported in a different form. Do you see any possible agreement between the parties on that? Does it come up in the lame duck after the midterms?

COTTON: I don’t think they get that through the House of Representatives. Look how much they struggled just to pass rhetorical messaging bills with no teeth – they had to beg, borrow and steal votes, pleading with the radicals in the so-called “Squad” just to vote present. I don’t know how Biden is going to take the beating that’s coming his way in the election, if he’s going to react more like Barack Obama or Bill Clinton.

AMERICANA: Is there a federal response to defensive policing? That’s some of the tension, too – police departments report lower morale after negative attention, make fewer arrests, close fewer cases.

COTTON: So many officers worry too much about what their city or county’s political leadership – in some cases, even their departmental leadership – would do if faced with one of those controversial moments where all the facts aren’t clear.

Local leaders need to make it clear that they will not jump to conclusions, that they will not abandon officers. Simply winning the Congress and putting an end to nonsense like repealing qualified immunity would contribute to greater confidence on the part of our police officers.

Cotton was years ahead of what’s now the dominant Republican message on crime: That there’s no “mass incarceration” problem, and that freeing prisoners inevitably leads to more violence. I wasn’t surprised by his answers, but interested in where he wants to take this in 2023, with new Republican legislators who want to fire liberal prosecutors and step up penalties for drug trafficking.

Investigative journalist Radley Balko has accused Cotton and his allies of misleading voters on crime, especially when they’ve tried to keep progressive judicial nominees off the bench. “As with any other institution, we improve the criminal justice system by exposing and correcting its flaws, not by pretending those flaws don’t exist.”