Imagine Jeff Sessions one day waking up and promoting open borders and then criticizing Ted Cruz for continuing to fight for border security. Or imagine one day Elizabeth Warren decides to support repeal of Obamacare and lambasts Bernie Sanders for continuing to fight for socialized medicine. Well, that is how zany, capricious, and unfathomable Sen. Chuck Grassley’s sudden flip on crime and drugs is in the Senate.
Sen. Chuck Grassley, R-Iowa, has been so vociferous in his quest for jailbreak that he has thus far opposed the House-passed back-end jailbreak bill because it did not contain the front-end jailbreak provisions of his bill that he shepherded through the Senate Judiciary Committee. Grassley and every liberal on that committee voted to retroactively release gun felons and drug traffickers – the most violent people around – the day after the Parkland shooting. Parkland itself is a legacy of the burgeoning “avoid jail time for juveniles at all costs” movement reflected in Title II of this bill.
Last Thursday, Grassley had the gall to criticize Sessions for merely maintaining the position they both had held for years and the essence of what the president campaigned on:
2/2 Pres Trump wants something done on prison/crim justice reform. So do I. will b important BIPARTISAN win for country, something many hv tried 2 accomplish for yrs. AG Sessions surely needs to support POTUS’ policy priorities, otherwise he’s UNDERMINING @realDonaldTrump
— ChuckGrassley (@ChuckGrassley) August 16, 2018
As late as March 10, 2015, Grassley referred to this very bill as “Orwellian,” promoted by “the leniency-industrial complex” simply “as a matter of ideology” because “facts do not matter to them.”
Then, stupefyingly, he introduced an almost identical bill with the very same talking points he lambasted just six months later.
Isn’t it time someone called out Grassley for his incomprehensible flip on this issue? Fairly recently, Grassley delivered floor speeches cutting down every straw-man argument used to support this bill and the movement behind it. Let’s use Grassley’s own words. I couldn’t have said it better myself:
The notion that federal drug traffickers are nonviolent
Supporters of the bill say it allows for shorter sentences only for “nonviolent offenders.” That term “nonviolent offenders” is highly misleading.
First, that phrase conjures up people in jail for simple possession. But this bill does not apply to simple possession at all, for any drug.
Second, the types of offenses the bill applies to are violent. Importing cocaine is violent. The whole operation turns on violence. Dealing heroin also involves violence or the threat of violence.
Third, the crime for which the defendant is being sentenced might have been violent. The mandatory minimum sentence would be cut even if the criminal’s co-defendant used a gun.
Fourth, the criminal himself could have a violent history. …Supporters of the bill never acknowledge that it would apply to drug dealers with a history of violent crime. (April 8, 2014, floor speech criticizing the Smarter Sentencing Act)
The notion that giving more discretion to liberal judges will result in “smarter” sentencing
And don’t pay attention to the smokescreen that the bill leaves the maximum sentence alone. Judges are not sentencing anywhere near the maximum today. The whole point of the bill is to allow judges to ignore current mandatory minimums for serious offenses like heroin importation and cocaine dealing, and sentence defendants to half the minimum they are now receiving.
We know from the experience of the states that when mandatory minimum sentences are reduced, judges use their greater discretion only to sentence the same or more leniently, even when the drug offender has a history of violence. (April 8, 2014, floor speech criticizing the Smarter Sentencing Act)
When supporters of this bill discuss how it increases discretion for judges and keeps current maximum sentences, what they really mean is that judges will gain discretion only to be more lenient. The bill does not increase discretion for judges to be more punitive. (May 13, 2014, floor speech criticizing the Smarter Sentencing Act)
The notion that we lock people up with no programs
I do not agree with him that prisons today “warehouse and forget.” All kinds of programs and incentives exist for prisoners today to improve their behavior when they are released. Sentences can be shortened by completion of these programs. And I don’t think that the solution to a cycle that ends in incarceration is simply to incarcerate criminals for less time or to jail fewer criminals. (September 17, 2013, floor speech defending mandatory minimums from the assault by then-Attorney General Eric Holder)
The notion that too many people get the mandatories
Mandatory minimum sentences are not new. The first Congress enacted mandatory minimum sentences in 1790. Nor are they as inflexible as they are often characterized. According to the Sentencing Commission, almost half of all offenders convicted of an offense carrying a mandatory minimum sentence are not given such a sentence. We hear over and over that mandatory minimum sentences are one size fits all. We hear that low level and first time offenders always receive harsh sentences. Not so. The safety valve provision requires judges not to impose mandatory minimum sentences for first time, low-level, nonviolent drug offenders, who have provided all information to the authorities. Mandatory minimum sentences are not imposed on many other offenders because they provide substantial assistance to the government in prosecuting more serious criminals. (September 17, 2013, floor speech)
Under federal sentencing law, those who are low-level offenders avoid mandatory minimum offenses. Just under half of all drug courier offenders were subject to mandatory minimum sentences, but fewer than 10% received mandatory minimum sentences. One reason for the difference is that offenders who cooperate in prosecuting high level drug conspirators avoid the mandatory minimum sentences. (March 10, 2015, floor speech)
The notion that too many people are in prison for drugs
Supporters of the bill also raise the argument of prison overcrowding. But prison populations in this country are decreasing and have been decreasing for several years. States have been able to reduce prison construction and sentencing as crime has fallen. As Charles Lane wrote in the Washington Post, one reason states could do this is the reduction in the fear of crime that has accompanied falling crime rates.
The rate of increase in federal prison populations has fallen a great deal. In recent years, the number of new federal prisoners receiving prison sentences has declined. New policies the Department has adopted with respect to clemency and its unwillingness to charge defendants for the crimes they have committed will only further reduce overcrowding and prison expenses.
It is also important to recognize that drug offenders are an increasingly small proportion of the new offenders who are being sentenced to federal prison as federal law enforcement shifts more resources away from drugs and toward immigration and weapons offenses. (May 13, 2014, floor speech criticizing the Smarter Sentencing Act)
The notion that jailbreak saves money
The Congressional Budget Office estimated that the bill, even while releasing hundreds of thousands of prisoners earlier than under current law, would increase direct spending by about $1 billion and would reduce revenues by $42 million over ten years. (March 10, 2015, floor speech)
The notion that mandatories serve no constructive purpose in prosecuting bigger crimes
The combination of mandatory minimum sentences and a [sentence] reduction for substantial assistance provides investigative leads against bigger fish. It is a benefit of mandatory minimum sentences that is not always appreciated. Were we to meaningfully cut back on mandatory minimums, we would lose the ability to bring prosecutions against a large number of major criminals…. it would be a serious mistake to eliminate mandatory minimum sentences, either wholesale or for a class of drug offenses. (September 17, 2013 floor speech)
The notion that mandatories serve no purpose in busting up terrorism or deterrence
What this means is that by slashing in half the mandatory minimum sentences for the local drug dealer down the block, the Smarter Sentencing Act also slashes in half the mandatory minimum sentences for members of the Taliban, al-Qaeda or Hezbollah who deal drugs to fund acts of terror.
So, for example, terrorists who currently face a mandatory minimum sentence of 20 years imprisonment for narcoterrorism would instead face only 10 years if the Smarter Sentencing Act were to become law.
By cutting the mandatory minimum sentences for trafficking drugs to fund terrorism, the Smarter Sentencing Act weakens an important tool that can be used to gain the cooperation of narcoterrorists facing prosecution. This cooperation leads to more arrests, more drug seizures, more terrorists off the streets, and more intelligence that could help prevent attacks. […]
The last thing we should do is weaken the leverage that law enforcement currently has to win a terrorist defendant’s cooperation. But that’s what the Smarter Sentencing Act would do. (July 14, 2014, floor speech)
He even quoted Derek Maltz, former head of the DEA’s Special Operations Division, during that speech.
The notion that racial disparities are because of the mandatory minimums
The Attorney General correctly notes that “unwarranted disparities are far too common.” He cited one report that shows that “black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes,” and that this is “shameful.”
But he overlooks the reason for those disparities. They exist not so much due to mandatory minimum sentences, which existed both before Booker [court case] and after. In fact, Congress has reduced mandatory minimum sentences since Booker. Rather, the disparities are due primarily to the Supreme Court’s Booker decision that made the sentencing guidelines advisory, rather than to mandatory minimums.
Since that 2005 ruling, the guidelines have been applied in fewer and fewer cases every year. Sentences imposed now turn on which judge the offender appears before. And more than before, the quality of the lawyer and the other factors that produced disparity before the Sentencing Reform Act are now creeping back into sentencing. (September 17, 2013, floor speech)
Facts just don’t matter
Nobody expressed the frustration with the jailbreak movement and its fact-free and reality-free opining better than Grassley:
The supporters of the so-called Smarter Sentencing Act do not even attempt to contest my points in opposition. They do not say there is not a heroin epidemic. They cannot say that citizens are serving federal mandatory minimum sentences for possession. But they do say this – their major ploy is to paint a picture that poor innocent mere drug possessors are crowding our prisons. […]
They are committed to the bill as a matter of ideology. The facts simply do not matter to them. They try change the subject. All they can do is resort to rhetoric. In fact, the supporters of that legislation are Orwellian in their rhetoric. (March 10, 2015, floor speech)
What about the law enforcement agency concerns Grassley now dismisses?
Law enforcement is telling us that this bill would be bad policy and create more crime victims. But it is also saying that were this ill-considered legislation to pass, the safety of the police officers who safeguard us would be jeopardized. How can we possibly do that to those who bravely protect us? (April 8, 2014, floor speech criticizing the Smarter Sentencing Act)
But what we really ought to do is listen to them. They are telling us that taking up this bill would be a slap in the face of all our brave police officers who protect us from harm every day. They deserve better than that. Citizens who are finally less likely to become crime victims deserve that. The respect that is due those on the front line against wrongdoers demands that the Senate neither take up nor pass the mislabeled so-called Smarter Sentencing Act. (May 13, 2014, floor speech criticizing the Smarter Sentencing Act)
Grassley praised the National Association of Assistant U.S. Attorneys for “courageously” disagreeing with “their employer,” who was then-Attorney General Eric Holder. Now he is bashing them for taking the same position on the same bill under the same premise and during an intensifying drug crisis when the Justice Department actually agrees with them.
Folks, if anything, every argument Grassley made prior to his flip in the fall of 2015 is becoming stronger by the day. He made all these statements before the mass jailbreak under Obama, the intensifying of the worst drug epidemic in history, and the revelation of new crime data showing violent crime going back up commensurate with the prison population going down.
In fact, during that 2014 speech against the very bill he now supports, Grassley noted that the “bill is particularly misguided in light of current conditions concerning drug use” and that we are “in the midst of a heroin epidemic right now.” He said that “cutting sentences for heroin importation and dealing makes no sense at all.” He proclaimed that allowing judges to lower sentencing on heroin dealers “boggles the mind.” Guess what? The number of illicit drug deaths has skyrocketed since Grassley made that speech.
Remember, this was before the advent of fentanyl and its analogues in the illicit market. Even then, Grassley asked, “Why on earth, then, would we cut sentences for sellers and importers of the worst drugs now plaguing our cities, suburbs, and rural areas?”
Yes, we live in a political culture of endless “evolutions,” almost always to the left on any given issue. But we’ve never seen anything like this before. Whether it’s the Kochs or some other mysterious factor, one thing is for sure, Chuck Grassley is a walking, talking poster-child for term limits.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.