While I appreciate Senator Tom Cotton’s concerns about the nation heading in a direction that makes us soft on crime, I do not think we have an “under-incarceration problem,” as he calls it. In fact, I think many of the things criminalized at the federal level should be left to the states. I do not think we have an under-criminalization problem. I think the federal government incarcerates too many people and criminalizes too much activity.
We are not talking about major crimes. Nor are we talking about violent offenders. We’re talking about people with addiction more often than not. And many of those people need help overcoming their addiction, which is not the same as locking them up. I don’t think anyone disputes there are people in federal prison who could be productive members of society if they’d been steered toward a treatment program, which can often cost less than putting them in prison.
Additionally, we do not just need criminal justice reform at that level. We need it at the business crime level as well. As I learned in law school, ignorance of the law is no excuse. Except now it should be. The United States Code and the massive regulatory regime that comes with it has gotten ridiculous. In some cases, like the Gibson guitar case, business owners are expected to know the laws of foreign regimes and be punished for violating those.
I get Senator Cotton’s concerns and don’t want the nation to over correct from being too tough on crime to being too soft. But I don’t think the pending bipartisan legislation does that. I think it strikes the right balance.