THE BRUTALISM OF THE ENTIRE SYSTEM

It pains me to defend Ted Cruz on any grounds whatsoever, but I have to take issue the opening paragraphs of today's David Brooks column, titled "The Brutalism of Ted Cruz."

In 1997, Michael Wayne Haley was arrested after stealing a calculator from Walmart. This was a crime that merited a maximum two-year prison term. But prosecutors incorrectly applied a habitual offender law. Neither the judge nor the defense lawyer caught the error and Haley was sentenced to 16 years.

Eventually, the mistake came to light and Haley tried to fix it. Ted Cruz was solicitor general of Texas at the time. Instead of just letting Haley go for time served, Cruz took the case to the Supreme Court to keep Haley in prison for the full 16 years.

Some justices were skeptical. “Is there some rule that you can’t confess error in your state?” Justice Anthony Kennedy asked. The court system did finally let Haley out of prison, after six years.

The case reveals something interesting about Cruz’s character. Ted Cruz is now running strongly among evangelical voters, especially in Iowa. But in his career and public presentation Cruz is a stranger to most of what would generally be considered the Christian virtues: humility, mercy, compassion and grace. Cruz’s behavior in the Haley case is almost the dictionary definition of pharisaism: an overzealous application of the letter of the law in a way that violates the spirit of the law, as well as fairness and mercy.

Brooks writes, "The court system did finally let Haley out of prison, after six years." Did you notice that he doesn't say that the Supreme Court let Haley out of prison? That's because the High Court refused to free Haley, sending his case back to a lower court. (It was a state court that subsequently freed him, sentencing him to time served.) So, yes, you can say that Cruz's defense of the draconian sentence given to Haley was "brutalism," but he was far from the only brute -- six Supreme Court justices were also complicit.

As was Cruz's boss:

Although state prosecutors had admitted the original sentence was an error, Texas Atty. Gen. Greg Abbott asked the Supreme Court to reverse the rulings that had freed Haley.

"This is a case about federalism," he said, quoting a 1991 opinion by O'Connor. "It concerns the respect that federal courts owe the states and the states' procedural rules when reviewing the claims of state prisoners."

Greg Abbott, of course, is now the constitutional-convention-proposing governor of Texas. It seems highly unlikely that Cruz twisted Abbott's arm in this matter. He's complicit, too.

The issues in the case are a bit complicated. Texas was following a three-strikes law in seeking a long sentence for Haley -- and, in fact, this was Haley's third strike, though not according to the letter of the law. He had two previous felony convictions -- the first for delivery of amphetamine, the second for a robbery -- but in order for the third conviction to trigger the three-strikes law, the conviction on the first felony charge had to be final before the second felony was committed. In fact, the second felony was committed three days before the first conviction was finalized. So, according to the law, the third conviction should not have put Haley at risk of an enhanced sentence. The sentencing jury didn't know that, however, and voted for the long sentence.

Haley appealed -- but the state said the appeal came too late:

Eventually, Haley caught on to the mistake. And in August 2000, he filed a petition for habeas corpus in federal court. In his petition, he claimed that he was "innocent" of being a habitual offender and, accordingly, that his sentence was unlawful.

The State of Texas conceded that Haley's criminal record made him ineligible for habitual offender treatment. But the State still wanted Haley to serve the extra 14-plus years on the ground that he had waived the argument he now was making -- having failed to raise the objection at trial or on direct appeal from his conviction and sentence....

The federal district court rejected the State's claim. It ruled that Haley's claim fell within what is known as the "actual innocence" exception to the bar against raising defaulted claims. Accordingly, the court ordered Texas to re-sentence Haley.

But in our system, even if something's been done to you that's contrary to law, you may not be deemed worthy of redress:

In so doing, the district court broke a bit of new ground. The "actual innocence" exception allows defendants to raise new claims in a petition for a writ of habeas corpus. In the past, it had only been recognized in death penalty cases -- not term-of-years cases like Haley's.

So, yes, according to the letter of the law, Haley didn't deserve a "habitual offender" sentence. But appeals of the kind Haley filed hadn't been accepted in the past in non-capital cases.

His case did succeed, however, in the court system -- at least for a while:

... a U.S. magistrate, a U.S. district judge and the U.S. Court of Appeals in New Orleans ruled that Haley must be freed because he had served six years in prison for a crime that carried a two-year maximum sentence.

"This is a classic example of a fundamental miscarriage of justice," said Judge Carl E. Stewart of the U.S. 5th Circuit Court of Appeals.

But in 2004 the Supreme Court sided with Cruz and Abbott, citing judicial "restraint" and federalism:

In a 6-3 decision, the justices said simple claims of injustice or "actual innocence" were usually not the basis for appeals in federal courts. To win in a federal court, defendants must show a "constitutional error" in the handling of their cases, they said.

... Without deciding the matter directly, Justice Sandra Day O'Connor said the high court would continue to adhere to a "rule of restraint" that limited federal judges from reopening state cases.

And the dissenters weren't the justices you might expect:

... Justice John Paul Stevens, joined by Justices Anthony Kennedy and David Souter, bemoaned that the majority, in order to avoid dealing with the cause and prejudice standard, had managed to "forget about justice."

... both Clinton appointees, Ruth Bader Ginsburg and Stephen Breyer, voted with the majority -- and, indeed, could have swung the case the other way had they so chosen -- while Justice Kennedy joined the dissent.

In the appeals process, the state of Texas lost this case three times -- but the state just kept appealing it all the way to the Supreme Court. And then the Supreme Court agreed with Texas.

I don't like Ted Cruz, but I don't believe this decision was his alone to make. Attorney General Greg Abbott was in his corner. And then so was the Supreme Court, including two liberal justices.

That's our system. There's brutalism all around.