Don’t give up on the First Step Act

Earlier this month, 46-year-old Troy Pine was murdered while inside a hookah lounge in Providence, Rhode Island. His alleged attacker – father, husband and former cocaine dealer Joel Francisco – had been released from federal prison this spring under the First Step Act. While Francisco has yet to be convicted and proven guilty in a court of law, a warrant is out for his arrest.

It would be easy to cast the blame on recent criminal justice reforms. It’s true, after all, that Francisco would not have returned to society if the First Step Act had not passed. Rather, he would still be serving the mandatory life sentence he was handed after being found guilty of his third felony drug conviction. But does that lend credence to those who argue that reform efforts undermine rather than promote public safety?

The short answer is no. If anything, Francisco’s alleged actions vindicate our efforts to improve our broken prison systems.

All too often, prisons are not places of rehabilitation, but institutions where people learn to rely on violence as a means of protection and communication. A Department of Justice (DOJ) report released earlier this year – which described Alabama prisons as environments “rife with violence, extortion, drugs, and weapons” – bears witness to this fact. The DOJ declared the conditions so repugnant that there was reasonable cause to believe they violated the Eighth Amendment’s ban on “cruel and unusual punishment.” Reporting on conditions in other state and federal facilities shows Alabama prisons are far from the exception.

While we put individuals into this corrosive environment, we often fail to provide them with access to the tools that might help them live crime-free, productive lives once released. Drug treatment, mental health care, education and high-quality employment programming are all critical parts of this agenda. Yet survey data suggest that many individuals in need of such interventions never receive them.

Keeping individuals in a pernicious environment for long periods while failing to invest in programming and incentives that would encourage them to change is a recipe for more crime, not safer streets. Francisco, if guilty, is an example of that. If our prisons were places of rehabilitation instead of just retribution, a man convicted of drug-related offenses might not have so quickly accelerated to committing murder after returning to society.

The First Step Act began to rectify this problem at the federal level by enhancing and promoting programming that promises to improve public safety. In fiscal year 2019, First Step Act funds will be used to increase opportunities for beneficial interventions for those in prison. On top of this, the law tasks the Bureau of Prisons with evaluating current programming and using a new, more accurate tool to identify the needs and risk levels of those in the federal system to inform how they assign programming.

Unfortunately, Francisco was not able to benefit from these changes while in prison. But as a result of the First Step Act, hundreds of thousands of other federal prisoners will.

Promoting rehabilitation was not the only goal of the First Step Act. The law also sought to return proportionality to our criminal justice system — a principle that conservatives, in particular, should celebrate rather than decry.

It did this by reducing some mandatory minimums and allowing for retroactive application of the Fair Sentencing Act of 2010, which had shrunk the sentencing threshold disparity between crack and powder cocaine.

Before the Fair Sentencing Act, individuals convicted of an offense involving 5,000 grams of cocaine could receive a punishment similar to that of someone dealing 50 grams of crack. This was a blatant insult to the principle of fair and equal justice under the law, and a prime example of an arbitrary and capricious government edict that individuals should fear most. More than 1,650 people have already seen their sentences reduced due to this reform. 

Finally, if Francisco is guilty of this crime, he is the exception not the norm. Thousands of individuals are being released from custody under the First Step Act, and many more who have worked hard to prove their rehabilitation stand to benefit in the months to come. While it’s still too early to assess how many of these individuals will commit a new offense, there has hardly been a widespread spike in crime.  

The criminal justice system is not perfect; there will always be cases where someone returns to crime after re-entering society. The only way to guarantee that this doesn’t happen – the fear-filled, totalitarian way – is to imprison everyone who commits a crime for life. The pragmatic, limited-government way is to continue reforming the criminal justice system until we’ve achieved a balanced measure of accountability and rehabilitation.

Arthur Rizer (@arthurrizer) is the director of criminal justice and civil liberties at the R Street Institute and a former police officer and federal prosecutor. Emily Mooney (@emilymmooney) is a resident criminal justice policy fellow at the Institute.