Sentencing Reform

Ted Cruz and Chuck Grassley Switch Places on Sentencing Reform

Why is Cruz, a critic of disproportionate penalties, trying to sink the bill with the best chance of passing?

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Senate Judiciary Committee

Yesterday Matt Welch noted that Ted Cruz, once a leading Republican advocate of sentencing reform, has repositioned himself as an opponent, warning that letting federal prisoners out early will lead to an increase in crime. This reversal is especially startling because the bill that Cruz opposes as dangerously soft on crime is less ambitious than the one he proudly cosponsored last spring.

In October the Senate Judiciary Committee approved the Sentencing Reform and Corrections Act by a vote of 15 to 5. Cruz was one of the five members, all Republicans, who voted no on the bill. The others were Orrin Hatch (Utah), Jeff Sessions (Ala.), David Vitter (La.), and David Perdue (Ga.)—all law-and-order types who have never been fans of sentencing reform. Cruz, by contrast, was an original cosponsor of the Smarter Sentencing Act, introduced last February by Sens. Mike Lee (R-Utah) and Richard Durbin (D-Ill.). 

Both bills would make the lighter crack penalties that Congress approved in 2010 retroactive, meaning that thousands of current prisoners could seek shorter sentences. Both bills would loosen the criteria for the "safety valve" that lets some nonviolent drug offenders escape mandatory minimums. Both bills would replace the mandatory life sentence for a third drug offense with a 25-year term. But the bill Cruz cosponsored goes further than the one he voted against. The Smarter Sentencing Act would cut the penalties for many drug offenses in half, reducing the 20-year, 10-year, and five-year mandatory minimums to 10 years, five years, and two years, respectively.

The penalty reductions in the Sentencing Reform and Corrections Act are more modest—for example, 10 years off the 25-year mandatory minimum for a second or subsequent use of a firearm in the course of a drug trafficking offense and five years off the 15-year mandatory minimum for someone who possesses a gun after three convictions for "a violent felony or a serious drug offense." Furthermore, the bill creates two new mandatory minimums: five years for providing certain goods or services to terrorists and 10 years for "interstate domestic violence" resulting in death. It also increases, from 10 to 15 years, the maximum penalty for gun possession by various categories of people who are arbitrarily stripped of their Second Amendment rights under current law, including illegal drug users, undocumented immigrants, anyone who has ever been subjected to court-ordered psychiatric treatment, and anyone who has ever been convicted of a felony, violent or not. 

I am not alone in thinking the bill that Cruz considers recklessly lax is tougher than the one he cosponsored. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who condemned the earlier bill (the one Cruz backed) as "lenient" and "dangerous," is the lead sponsor of the Sentencing Reform and Corrections Act, which helps explain why the bill lengthens some sentences while shortening others.

What does Cruz know that Grassley doesn't? Before he voted against Grassley's bill on October 22, he said he objected to two aspects of it: "retroactivity" and reduced penalties for "criminals who have used a firearm in the commission of a crime." Neither of those concerns makes much sense.

If Congress determines that certain sentences are unjust, it hardly seems fair that current prisoners should be forced to complete them. In any event, retroactivity did not seem to bother Cruz when it was included in the Smarter Sentencing Act, which like Grassley's bill would allow currently imprisoned crack offenders to seek shorter terms under the rules enacted in 2010. According to Families Against Mandatory Minimums, that provision alone could affect up to 6,500 prisoners. Yet Cruz complains that "7,082 federal prisoners would be eligible for release" under Grassley's bill. If so, a provision Cruz has already endorsed is responsible for something like 92 percent of those potential early releases, all of which would involve people convicted of noviolent drug offenses. Given this context, Cruz's fear mongering is especially shameful:

None of us know what those 7,082 federal prisoners did; none of us know what the underlying conduct was that prosecutors may have plea-bargained down….At a time when police officers across this country are under assault right now, are being vilified right now, when we're seeing violent crime spiking in our cities across the country, I think it would be a serious mistake for the Senate to pass legislation providing for 7,082 convicted criminals potentially to be released early….I cannot go along with legislation that could result in more violent criminals being released to the streets and potentially more lives being lost.

When Cruz talks about "criminals who have used a firearm in the commission of a crime," he is referring to the aforementioned reductions in gun-related penalties, along with a provision clarifying that the enhanced mandatory minimums for repeat offenders require previous convictions, as opposed to, say, two drug sales in a single case. Contrary to Cruz's spin, the people who receive these penalties are not necessarily violent criminals, since merely possessing a gun can be considered using it in the course of a drug trafficking offense.

A well-known example is Weldon Angelos, who never brandished a gun, let along fired one, but nevertheless got hit with a 55-year mandatory minimum because he allegedly possessed a firearm when he sold marijuana to a government informant on three occasions (half a pound each time). He got five years for the first sale and 25 years for each of the other two, and the law requires that the sentences be served consecutively. Under Grassley's bill, Angelos would instead have received a 15-year sentence (five for each count), since he had no prior convictions.

Even if we pretend that everyone affected by these provisions is a violent criminal, Cruz's position is that the difference between 25 years and 15 (for repeated "use" in the course of a crime), or between 15 years and 10 (for mere possession by a repeat felon, even if he commits no other offense), is worth scuttling the entire bill. "When a violent criminal uses a gun," he says, "we should come down on that criminal like a ton of bricks." Apparently two-thirds of a ton simply will not do.

Cruz insists he still wants to do something about "disproportionate sentences for nonviolent drug offenders." Yet his tough talk is exactly the sort of demagoguery that mindlessly punitive politicians like Grassley have been spouting for years, to the dismay of reformers like Cruz. Now the two have switched places, to the dismay of those who once admired Cruz's comparatively enlightened attitude.

Addendum: Michael Collins, deputy director of the Drug Policy Alliance, notes that David Perdue, like Cruz, cosponsored the Smarter Sentencing Act before voting against the Sentencing Reform and Corrections Act.