Sentencing Reform

Ted Cruz, Who Bragged About Backing Smarter Sentencing in 2015, Turns Against His Own Cause

The Texas senator is now allied with longtime opponents of reform in resisting the FIRST STEP Act.

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Office of Ted Cruz

Sen. Ted Cruz (R-Texas) opposes the FIRST STEP Act, which includes sentencing reforms that are less ambitious than ones he enthusiastically supported just three years ago. Cruz has never offered a plausible explanation for this turnaround.

When the Senate Judiciary Committee approved the Sentencing Reform and Corrections Act (SRCA) last February, Cruz was one of just five members who voted against it. He offered an unsuccessful amendment that would have eliminated retroactive application of shorter sentences for certain nonviolent drug offenders, a feature he said would doom the bill.

"If you want this bill to be more than a messaging press release, if you want this bill to actually to go into the United States Code, particularly given that we have an administration and an attorney general who have come out against it," Cruz said, "I would suggest the way to maximize the chances of doing anything to fix the problem is to accept this amendment. Its chances of passing would rise dramatically." Yet now that Jeff Sessions is gone and Donald Trump has endorsed the Senate version of the FIRST STEP Act, which includes several elements of the SRCA, Cruz is still opposed to the changes.

Cruz's position is especially puzzling because not long ago he was pushing sentencing reforms that in some respects went further than the FIRST STEP Act. "The issue that brings us together today is fairness," Cruz said in February 2015, announcing his cosponsorship of the Smarter Sentencing Act. "What brings us together is justice. What brings us together is common sense. This is as diverse and bipartisan array of members of Congress as you will see on any topic, and yet we are all unified in saying commonsense reforms need to be enacted to our criminal justice system. Right now today far too many young men, in particular African American young men, find their lives drawn in with the criminal justice system, find themselves subject to sentences of many decades for relatively minor nonviolent drug infractions."

The Cruz-backed Smarter Sentencing Act, like the FIRST STEP Act, would have reduced mandatory minimum sentences for repeat drug offenders; widened the "safety valve" that exempts some low-level, nonviolent drug offenders from mandatory minimums; and retroactively applied the shorter crack sentences that Congress approved nearly unanimously in 2010. Unlike the FIRST STEP Act, the bill Cruz co-sponsored also would have reduced the 20-year, 10-year, and five-year mandatory minimums for certain drug offenders to 10 years, five years, and two years, respectively.

The FIRST STEP Act would reduce the mandatory minimum for drug offenders with one prior conviction a bit more than the Smarter Sentencing Act (from 25 to 15 years instead of 20), and its safety valve provision is somewhat more generous (allowing as many as four criminal history points rather than two). It also clarifies, unlike the Smarter Sentencing Act, that the escalating mandatory minimums for drug offenders who have guns require prior convictions, rather than multiple charges in a single case. But Cruz in 2015 endorsed broader and sharper reductions in mandatory minimums as well as the retroactivity for crack offenders he now claims to find objectionable.

"We need to recognize that young people make mistakes, and we should not live in a world of Les Miserables, where a young man finds his entire future taken away by excessive mandatory minimums," Cruz said then. "I want to commend Senator [Mike] Lee, Senator [Richard] Durbin, for their leadership on this. It's not easy to bring together this broad bipartisan coalition, but it's an issue that matters. It's an issue of justice. I'm proud to stand together, and I hope that this same group, and an even larger group, can stand together in a few months at a signing ceremony where this legislation becomes law."

Nowadays Cruz is doing his best to defeat that broad bipartisan coalition for justice, including his erstwhile allies Lee and Durbin. In a Houston Chronicle op-ed piece last July, Ames Grawert, a lawyer at the Brennan Center for Justice, said "the president and Attorney General Jeff Sessions adamantly oppose" sentencing reform. "Cruz was for reform when it was popular with leading Republicans," Grawert wrote. "Now it's not, so he's against it." Yet Sessions is no longer attorney general, and the president supports the bill that Cruz is trying to block.

"Harsh mandatory minimum sentences for nonviolent drug crimes have contributed to prison overpopulation and are both unfair and ine?ective relative to the public expense and human costs of years-long incarceration," Cruz wrote in a 2015 essay published by the Brennan Center. "Given the undeniable costs and dubious bene?ts of mass, long-term incarceration of nonviolent drug o?enders, Congress should take steps to give judges more ?exibility in sentencing those o?enders. The Smarter Sentencing Act of 2015, which was introduced by Sens. Mike Lee (R-Utah) and Dick Durbin (D-Ill.), and of which I am an original cosponsor, is a signi?cant stride in that direction. Among other things, the bill lowers minimum sentences, cutting them in half, to give judges more ?exibility in determining the appropriate sentence based on the unique facts and circumstances of each case."

Cruz seemed to believe all that at the time. Now he is allied with longtime opponents of criminal justice reform like Sen. Tom Cotton (R-Ark.) in support of dumber sentencing. A few years ago, Cruz bragged about taking "a significant stride" toward fairer penalties, but now he balks at a more modest first step.

A recent poll commissioned by the Justice Action Network found that three-quarters of voters agree with the position Cruz took in 2015. Why doesn't Cruz?

Update: "I support criminal justice reform," Cruz told reporters on Tuesday. "I hope to get to yes on this bill. My central concern is that we should not be releasing violent criminals. I fully support reducing mandatory minimum prison sentences for nonviolent drug offenders. But for me, I draw the line at violence. And so, I'm working with the bill sponsors to make sure that violent criminals are not included. And if we exclude violent criminals, then I expect to support the bill. If we don't, then I won't be able to support the bill."

I've asked Cruz's press secretary to clarify which provision(s) of the bill he thinks will release violent criminals, and I will update this post again if I get a reply.