Sen. Tom Cotton (R-Ark.) has tangled with some of his Republican colleagues over their push for criminal justice reform. | Al Drago/Getty Images Congress Cotton wields sex offender report to tank prisons bill The senator is seizing on a new DOJ analysis in his fight against fellow Republicans.

GOP Sen. Tom Cotton is locked in an awkward fight with fellow Republicans over their push to change federal prison sentencing guidelines. And now he has a new attack line intended to make his rivals squirm: warnings that sex offenders could get off easy.

A new Justice Department analysis — conducted at Cotton's request — found that the Senate’s bipartisan sentencing and prison reform bill could make people convicted of some sex crimes eligible for early release. And though President Donald Trump supports the bill, Cotton says the DOJ confirmation underpins his argument that convicts of certain sex-related crimes could accrue credits making them eligible for supervised release or “pre-release” to a halfway house.


While GOP leaders are beginning to assess the prospects of the bill on the Senate floor, the Arkansas Republican argues that the latest version of the bill has been rushed and contains significant flaws, and he hopes to sway undecided Republicans to join him.

Cotton and Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah) have been battling over the specifics of the bill since it was released in mid-November, exactly the type of intraparty firefight Senate Majority Leader Mitch McConnell (R-Ky.) has been hoping to avoid.

The argument over the bill's treatment of sex offenders took center stage on Monday, prompting the latest public shots between the warring Republican senators.

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“Now that the Department of Justice has confirmed that the Senate FIRST STEP Act offers early release to multiple categories of sex offenders in several provisions of the bill, Congress should fix these problems instead of ramming this bill through. There is no such thing as a ‘low-risk violent sex offender’ who deserves earlier release than under current law," Cotton wrote in an emailed statement.

Conn Carroll, a spokesman for Lee, defended the legislation in response to the DOJ analysis on Monday and accused the bill’s opponents of “spreading fake news” about the bill.

“Just because a federal offense is not on the specific list of ineligible offenses doesn’t mean inmates who committed [a] non-specified offense will earn early release," Carroll wrote in an email. "All inmates must first pass a DOJ risk assessment before they can even begin earning good time credits. And then they must secure certification from their warden that they are not a threat to safety before they can be released.”

Carroll added that Lee is open to revising the bill if it turns opponents into supporters: “If adding to the list of specifically forbidden offenses would get some senators to yes, we would love to help them do that on the Senate floor.”

Their colleagues are watching closely.

Sen. Marco Rubio (R-Fla.) said a Cotton op-ed panning the bill made a "compelling argument" and indicated his vote is in play. A number of Trump's Senate allies, including Grassley, Rand Paul (R-Ky.) and Lindsey Graham (R-S.C.), are behind the bill, but in the Senate even a small band of opposed senators can make a floor debate stretch out for a week — all while lobbing attacks at fellow Republicans for being soft on crime.

"I'd like to get it through, but we still have a few problems that we ought to work out," said Sen. Orrin Hatch (R-Utah). "I'm for doing it if we can. We have a shot at it, but we're going to have to have a lot of cooperation."

Senior Senate Republicans said Monday they could not predict what McConnell would do.

“The leader wants a bill that doesn’t divide or fracture the conference,” said Sen. John Thune of South Dakota, the No. 3 GOP leader. “He believes from a timing standpoint it’s better next year in light of all we have to finish up.”

The president has lobbied McConnell to bring up the bill, but the GOP leader has told Trump the Senate's schedule is crowded over the next month. McConnell has emphasized that funding the federal government by the Dec. 7 deadline and finishing a farm bill are his top priorities. And the House would probably have to vote on whatever the Senate passes on criminal justice reform, and ousted House Republicans might want to head home as soon as the funding bill is finished.

Known as the First Step Act, the criminal justice legislation is a key priority for dozens of Republican and Democratic senators in the lame-duck session, including some who have fought for years to get floor time for criminal justice reform. McConnell's chief deputy, Sen. John Cornyn of Texas, said the GOP must ascertain whether the bill can come to the floor quickly before committing to considering the legislation.

"We're going to start whipping that," Cornyn said. "Part of the discussion is whether there's going to be an amendment process. That takes time. ... That's really the question: Can we build consensus or come up with an agreement that would allow us to do it on a limited time basis? I don't know the answer yet, but we're going to find out."

Right now, there's little guarantee of cooperation with Cotton calling for Republicans to go back to the drawing board over the bill's treatment of sex crimes.

In a copy of the DOJ correspondence obtained by POLITICO, Cotton’s office asked whether the bill would extend eligibility for credits to individuals convicted of four crimes: failure to register as a sex offender, importing aliens for prostitution, female genital mutilation and first-time assault with intent to commit rape or sexual abuse. The bill currently excludes those convicted of assault with intent to commit rape or sexual abuse from earning the time credits, but only if they’ve served a year or more in prison for a previous conviction.

A DOJ analyst responded that the measure contains no exclusions for people convicted of those crimes and that “all offenders would be eligible to receive more good time credits as a result of the bill.” DOJ referred a request for comment to the White House, which declined to respond to the DOJ analysis.

A spokesman for Grassley, who's shepherded criminal justice talks as Judiciary Committee chairman, drew a bright line between the bill's treatment of "good time" credits and "earned time" credits.

The four sex-related crimes on which Cotton sought information are already eligible for the former category of credits under current law, which the new criminal justice bill would expand to a minor degree in order to fix "a flawed interpretation of existing law," Grassley spokesman Taylor Foy said.

When it comes to the second category of credits, the current version of the bill empowers the Bureau of Prisons to determine which prisoners at a “minimum or low risk” of recidivism would be eligible if they complete training programs aimed at reducing the risk of further offenses.

The bill's long list of offenses for which extra credits cannot be earned bars certain types of prisoners "regardless of their risk assessment," Foy added. Nonetheless, the exclusion of Cotton's four categories of offenses could hand ammunition to him and other hard-liners who want to see the bill’s sponsors start over again next year.

Supporters of the current push argue that delay would kill the effort outright, given the fragile bipartisan compromise struck during the lame duck. The new House Democratic majority, they note, could insist on more expansive reforms than just the bill's limited sentencing components.

Trump himself is continuing his campaign for the bill. He held an event on it during his Monday trip to Mississippi to campaign for Sen. Cindy Hyde-Smith (R-Miss.).

It’s also possible that new categories of offenses could be added to the bill’s exemptions list as an amendment during Senate floor debate. Such tweaks are a relatively common occurrence on sensitive legislation, but opponents of the bill are likely to use any changes to the bill as a reason to stall it on the floor.