Sen. Tom Cotton (R–Ark.) is a hard-line drug warrior who reliably resists every attempt to reduce sentences for people convicted of distributing arbitrarily proscribed intoxicants. Cotton even opposed the FIRST STEP Act, a package of modest reforms backed by then-President Donald Trump that passed the House and Senate in 2018 with overwhelming support; he was one of just 12 senators who voted against the bill. So it is not surprising that Cotton took issue with Supreme Court nominee Ketanji Brown Jackson's decision to reduce the prison term of Keith Young, a heroin/fentanyl dealer, under a sentencing provision that the FIRST STEP Act broadened.
Here is how the Republican National Committee (RNC) described Cotton's exchange with Jackson regarding Young's case during her confirmation hearing on Tuesday: "Asked if she reached out to any of the victims of a heroin trafficker, Ketanji Brown Jackson dismisses the question by saying 'there were no victims.'" As we'll see, that gloss is highly misleading, and Cotton's question was absurd in this context.
That is par for the course with Republican attempts to portray Jackson (and Democrats generally) as soft on crime. Like Republican criticism of sentences that Jackson imposed on defendants convicted of possessing or sharing child pornography, Cotton's argument with Jackson about the Young case shows a complete disregard for nuance, context, and substantive policy analysis.
To judge the merits of Cotton's criticism, we need to consider the legal background of Young's case. In 2018, he was convicted of possessing one kilogram or more of heroin with the intent to distribute it. The prosecution sought a sentence enhancement under 21 USC 851, which applies to defendants with prior drug convictions. At her confirmation hearing, Jackson recalled that Young's prior conviction had happened "10 or 15 years before" and involved a "minor sentence." She said Young "had no criminal history" since that "old sentence." Jackson, then a judge on the U.S. District Court for the District of Columbia, nevertheless "followed the law, which said he had to go to jail for 20 years." The Section 851 enhancement triggered a 20-year mandatory minimum, which doubled Young's sentence.
Later that year, Congress enacted the FIRST STEP Act, which among other things allowed federal prisoners to directly petition courts for sentence reductions based on "extraordinary and compelling reasons." Previously, motions for sentence reductions had to come from the Bureau of Prisons. That provision, which also applies to elderly prisoners who have served 30 years or more, is commonly called "compassionate release." But a successful motion does not necessarily result in immediate release; it may just mean that a prisoner is released sooner than he otherwise would have been.
The COVID-19 pandemic caused a surge in "compassionate release" motions from federal prisoners, and Young filed one of them. Young asked Jackson to allow his release based on the threat posed by COVID-19, arguing that he was especially vulnerable because of his asthma and smoking history. Jackson rejected that request. But she decided to reduce Young's sentence to 10 years for what she considered an "extraordinary and compelling" reason: The FIRST STEP Act had changed the requirements for Section 851 enhancements so that Young's earlier conviction no longer would have triggered that provision. While that change was not retroactive, it meant that Young's prison term would have been half as long had he been sentenced half a year later.
When the U.S. Sentencing Commission (USSC) examined "compassionate releases" during the pandemic, it found that the danger from COVID-19 was by far the most common reason cited for granting prisoners' motions. But in 3 percent of cases, judges cited "sentence-related reasons," typically based on the concern that the prisoner's term would have been shorter under subsequently enacted reforms that were not retroactive—the same rationale that Jackson cited when she reduced Young's sentence. The average reduction in those cases was nearly 20 years.
The USSC notes that "circuit courts have disagreed about whether changes in law
are a permissible basis for a sentence reduction." So there is a legitimate question of statutory interpretation here. But rather than focus on that issue, Cotton argued that Jackson was effectively trying to retroactively apply a sentencing reform that Congress had decided not to make retroactive. "You chose to rewrite the law," he said, "because you are sympathetic to a fentanyl drug kingpin who you expressed frustration at having sentenced to 20 years in the first place."
Even as he accused Jackson of disregarding what Congress had decided, Cotton called the FIRST STEP Act "a terrible mistake," meaning that Congress was wrong when it decided what an appropriate penalty would be for a defendant like Young. Cotton thinks it is patently outrageous that Young, who has served two and half years so far, "will be released seven and a half years from now" instead of serving another decade beyond that. Yet Congress overwhelmingly decided that defendants in Young's situation, going forward, should serve 10 years rather than 20.
If you think the war on drugs is fundamentally unjust, you probably will disagree with both of those penalties. But Jackson never took the position that people should not be imprisoned for selling drugs. Rather, she concluded, in light of the judgment Congress had reached, that 10 years was a more appropriate sentence for this particular defendant. Cotton obviously disagrees, but he also disagrees with almost all of his fellow lawmakers—and Trump, who bragged about signing the FIRST STEP Act—on the question of how severely drug offenders should be punished.
Exasperated by Jackson's failure to share his sense of justice, Cotton asked her, "Before you granted this fentanyl kingpin's motion to reduce his sentence, did you contact any of the victims from his case?" That is a bizarre question to ask in this context.
I get it: By Cotton's reckoning, selling psychoactive substances that Congress has decided to ban is not a victimless crime, given the role that drugs like heroin and fentanyl play in drug-related deaths. Never mind that the prohibition policy Cotton zealously supports contributes to those deaths by creating a black market in which potency is highly variable and unpredictable. And never mind that the same logic would condemn people who sell alcoholic beverages or cigarettes, both of which are implicated in more deaths annually than heroin or fentanyl. But even if you accept Cotton's moral reasoning (which Jackson presumably does, given that she has no qualms about sending drug dealers to prison), how was she supposed to answer his question?
Jackson began politely: "Senator, thank you for allowing me to address Mr. Young's situation." Cotton interrupted her, saying, "I asked a simple question: Did you contact the victims in his case or not?"
But it was not a simple question. It was a stupid question, since Young's case did not involve any identifiable victims, as Jackson pointed out: "I did not contact the victims in his case, because there were no victims. He committed a crime, a drug crime. There were no identifiable victims in his case."
This was all a setup for Cotton's grandstanding, of course. "Drug crime is not a victimless crime," he admonished Jackson. "A hundred thousand Americans were killed by overdoses last year."
Jackson had not claimed that drug dealing is a "victimless crime." She had merely pointed out the absurdity of Cotton's question, and she tried to reiterate her point: "There was no one to contact, because there were no identifiable—" Cotton interrupted her again, returning to his critique of her decision to resentence Young.
The RNC thinks this was a gotcha moment, and it's right. The exchange reveals the demagoguery of preening, sanctimonious, mindlessly punitive drug warriors like Cotton.