How Ted Cruz Turned His Back on Drug War Prisoners

The Texas senator, once a leading Republican advocate of sentencing reform, seems to have abandoned the cause.

A year ago, Senate Judiciary Committee Chairman Chuck Grassley condemned a sentencing reform bill backed by Ted Cruz as "lenient" and "dangerous." Eight months later, it was Cruz's turn. Explaining his opposition to a sentencing reform bill backed by Grassley, Cruz described it as dangerously lenient.

When the Senate Judiciary Committee approved Grassley's bill by a 3-to-1 margin in October, Cruz joined four other Republicans in voting no. The Texas senator—once a leading Republican critic of excessively harsh criminal penalties, especially for nonviolent drug offenders—had effectively traded places with Grassley, a law-and-order Iowa Republican who has long resisted efforts to reduce those penalties.

The switch was especially puzzling because the bill Cruz supported was more ambitious than the one he portrayed as unacceptably lax. Worse, Cruz's explanation for his vote featured the sort of demagoguery that politicians like Grassley have long deployed against attempts to make our criminal justice system less mindlessly punitive. It is hard to escape the impression that Cruz, who is running second to Donald Trump in the race for the Republican presidential nomination, decided to abandon a cause that might alienate conservative primary voters.

Cruz was an original cosponsor of the Smarter Sentencing Act, introduced last February by Sens. Mike Lee (R-Utah) and Richard Durbin (D-Ill.). That bill, like Grassley's, would make the lighter crack penalties that Congress approved in 2010 retroactive, loosen the criteria for the "safety valve" that lets some nonviolent drug offenders escape mandatory minimums, and replace the mandatory life sentence for a third drug offense with a 25-year term. But the bill Cruz cosponsored goes further, cutting the penalties for many drug offenses in half. It would reduce the 20-year, 10-year, and five-year mandatory minimums to 10 years, five years, and two years, respectively.

The penalty reductions in Grassley's bill, the Sentencing Reform and Corrections Act, are not only more modest; they are accompanied by increases in other penalties. 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.

In short, the bill Cruz considers too soft on crime is in several significant ways tougher than the one he cosponsored, which helps explain why Grassley decided to back it. What does Cruz know that Grassley doesn't?

Cruz said he objected to two aspects of Grassley's bill: "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 complained 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 nonviolent drug offenses.

Cruz argues that some of these prisoners may nevertheless be guilty of violent crimes. "None of us know what those 7,082 federal prisoners did," he said in October. "None of us know what the underlying conduct was that prosecutors may have plea-bargained down." But a prisoner eligible for resentencing gets out early only if a judge decides it's appropriate, and the judge can consider aspects of his record that may not be reflected in his current sentence.

It is still possible, of course, that some drug offenders whose sentences are shortened will commit predatory crimes when they otherwise would have been behind bars. But that is also true of drug offenders convicted after penalties are reduced, so this sounds like an argument against any sort of sentencing reform. A defendant's sentence should be based on the crimes he has committed, not on speculation about crimes he might commit in the future. The latter approach is not justice; it's preventive detention. 

Heedless of these implications, Cruz argued that fear—fear of crime and of its political repercussions—should drive sentencing policy:

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. A substantial portion of those criminals will be illegal aliens with criminal convictions, and in light of the growing crime wave, I think it's a mistake….

I cannot go along with legislation that could result in more violent criminals being released to the streets and potentially more lives being lost….

We know to an absolute certainty that an unfortunately high percentage of those offenders will go and commit subsequent crimes. And every one of us who votes to release violent criminals from prison prior to the expiration of their sentence can fully expect to be held accountable by our constituents.

Cruz even mentioned mass shootings, implying that such crimes might be committed by drug offenders who are released from prison too soon. Yet none of the mass shootings that have grabbed headlines in recent years was committed by someone with any sort of felony record.

What about "criminals who have used a firearm in the commission of a crime"? Grassley's bill would reduce the mandatory minimum for possessing a gun after three convictions for "a violent felony or a serious drug offense" from 15 to 10 years; reduce the mandatory minimum for a second or subsequent use of a firearm in the course of a drug trafficking offense or violent crime from 25 to 15 years; and clarify that the latter penalty requires a previous conviction, as opposed to multiple drug offenses in a single case. Contrary to Cruz's spin, the people who receive these penalties are not necessarily "violent criminals with guns," since possession of a gun by a nonviolent drug offender can be enough to trigger the mandatory minimums.

Consider Weldon Angelos, a small-time pot dealer who never brandished a gun, let along fired one, but nevertheless got hit with a 55-year mandatory minimum in 2004 because he allegedly possessed a firearm when he sold marijuana to a government informant on three occasions (half a pound each time). Angelos got five years for the first sale and 25 years for each of the other two, and the law requires him to serve the sentences 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  and 15 years (for repeated "use" in the course of a crime), or between 15 and 10 years (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 said, "we should come down on that criminal like a ton of bricks." Apparently two-thirds of a ton simply will not do.

The Atlantic's Molly Ball reports that Cruz's shameful scare mongering, which provided ammunition to legislators who are trying to sink Grassley's bill, came as a surprise to his friend and erstwhile ally Mike Lee, who was the lead sponsor of the Smarter Sentencing Act and is now cosponsoring the Sentencing Reform and Corrections Act. Cruz's defection was also a surprise to those of us who admired his critique of overcriminalization, rigid sentencing rules, and the replacement of trial by jury with plea bargaining in which prosecutors wield overwhelming power.

"Although there is nothing wrong in principle with mandatory minimums, they must be carefully calibrated to ensure that no circumstances could justify a lesser sentence for the crime charged," Cruz wrote in his contribution to a collection of essays published by the Brennan Center for Justice last April. "The current draconian mandatory minimum sentences sometimes result in sentencing outcomes that neither fit the crime nor the perpetrator's unique circumstances. This is especially true for nonviolent drug offenders. Harsh mandatory minimum sentences for nonviolent drug crimes have contributed to prison overpopulation and are both unfair and ineffective relative to the public expense and human costs of years-long incarceration."

Right before he voted against Grassley's bill, Cruz insisted he still wants to do something about "disproportionate sentences for nonviolent drug offenders." If so, why did he oppose the sentencing reform bill with the best chance of passing this year, citing reasons that are implausible at best? And if this issue still matters to Cruz, why is there nothing about criminal justice reform on his campaign website? By contrast, Sen. Rand Paul (R-Ky.), one of Cruz's rivals for the Republican nomination, has a full page on the subject, listing bills he has sponsored to abolish mandatory minimums, reclassify low-level possession offenses as misdemeanors, eliminate the sentencing disparity between smoked and snorted cocaine, restrict asset forfeiture, and restore the voting rights and seal the federal records of nonviolent felons.

Unlike every other major-party candidate, Cruz joined Paul in opposing the Renewable Fuel Standard on free-market grounds, a principled stand that could have cost both men votes in Iowa, where that mandate benefits corn farmers and ethanol producers. It's too bad that Cruz, who describes his supporters as "courageous conservatives," did not have the guts to join Paul in advocating a more enlightened approach to criminal justice.

This article originally appeared at Forbes.com.