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Saturday, October 19, 2019

ANALYSIS/OPINION:

At the close of 2018, President Trump signed the First Step Act, the groundbreaking prison and sentencing reform bill that passed Congress with overwhelming bipartisan support. Since that time, thousands of Americans, many of whom were serving decades in prison for first-time drug offenses, have been released back to their families.

As a former federal prosecutor who spent years putting some of the worst of the worst criminals behind bars, I supported the First Step Act. It represents a measured, modest approach with appropriate safeguards to reducing unduly harsh penalties.


But First Step did not solve all the problems in our criminal justice system. And sadly, we saw the consequences of some of those deficiencies when earlier this week news broke of the tragic death of Troy Pine, the 46-year-old Rhode Island man killed in a Providence lounge. The case is still under investigation, but the man suspected of committing this heinous act is still on the run and has been named by the authorities: Joel Francisco. 

Francisco was reportedly released from prison after serving 14 years of a life sentence for dealing crack. His penalty was reduced in February of this year under a provision of the First Step Act. This provision made retroactive a law that was passed years ago that reduced the disparity in penalties for selling crack vs. selling cocaine (the former received a much stiffer penalty than the latter, leading to a disturbing explosion in the number of incarcerated black men).

Even former Attorney General Jeff Sessions, the toughest of the tough-on-crime prosecutors who opposed other aspects of the First Step Act, agreed with this policy. 

The retroactivity meant that people who were unfairly sentenced before the law was passed would be eligible to have their sentences reduced to the same penalty as those sentenced after the law was passed. This provision was one of the least controversial aspects of the First Step Act. 

But it’s not that simple. Just because an individual is eligible for a reduction in sentence that does not mean that person shall receive such relief. The First Step Act gave wide discretion to judges to examine the facts of each case and then determine what sentencing reduction, if any, is warranted.

The judge in the present case sentenced Francisco to “time served” and ordered his release. The prosecutor did not object, despite the fact that Francisco had a record of violence and weapons charges while in prison, and was reportedly a member of a very dangerous gang. While that gives me pause, the fact is that the overwhelming majority of these rulings have had positive outcomes.

The truly disturbing aspect of this case came after Francisco’s release, but before the Troy Pine killing. Francisco allegedly broke into his former girlfriend’s apartment, a clear violation of the terms of his supervised release. This should have prompted his probation officer to return him to custody. 

And yet for some inexplicable reason, no such action was taken.  

Adequate safeguards exist under the First Step Act which, if acted upon, could have ensured this man was removed from society before this tragic event occurred. There is no doubt that probation officers are swamped with massive caseloads, and the system as a whole is overworked and understaffed, but a man with a violent history who breaks into his former girlfriend’s home should have been revoked and returned to prison, not left on the streets to commit more crimes.

This is exactly why we need more criminal justice reforms, not less. At a baseline, we must ensure the safeguards already in place are working. One way to do that is to divert more low-level, non-violent drug offenders to treatment and rehabilitative alternatives instead of sending them to prison, and focus our resources on the truly dangerous in our society.

The First Step Act is working. According to the FBI, the violent crime rate is at its second-lowest point since 1991. As previously stated, thousands of people have returned home as a result of First Step, more than 1,700 releases as a result of the crack cocaine/powdered cocaine disparity provision alone. And this case is the first reported incident of a First Step Act recipient re-committing a serious crime. 

But even one tragedy is one too many, and we still have much work to do. Our system is still broken, and we should focus on reforms that offer second chances, but more importantly, keep us safe.

• Brett Tolman was appointed by President George W. Bush as the U.S. attorney for Utah, and he served in that role from July 2006 to December 2009. 


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