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A bipartisan criminal justice reform bill faces an uphill battle in Congress, even as Trump promises to sign it

Key Points
  • The new bipartisan criminal justice reform bill backed by President Donald Trump could reduce thousands of sentences and save the federal government millions of dollars in incarceration costs.
  • Still, the bill would affect less than 3 percent of the 181,000 inmates currently in federal prisons, and it would have no impact on the over 1 million inmates in state prisons.
  • Yet even with broad support and modest goals, the bill is unlikely to be put up for a vote this year.
US President Donald Trump makes an announcement regarding the 'First Step Act' prison reform bill, at the White House in Washington, DC, on November 14, 2018.
Jim Watson | AFP | Getty Images

The new bipartisan criminal justice reform bill backed by President Donald Trump could reduce thousands of sentences and save the federal government millions of dollars in incarceration costs.

Yet even with broad support and modest goals — it would affect only federal prisoners, a tiny slice of the nation's overall prison population — the bill known as the First Step Act is at risk of stalling in Congress.

At an event at the White House last week, Trump announced his intention to sign the bill, which his daughter and son-in-law, Ivanka Trump and Jared Kushner, have both publicly endorsed and pushed forward in the administration.

"I'll be waiting with my pen," said the president, who noted that the bill would reverse some federal policies that "disproportionately affected the African-American community."

The goal is to pass it before a divided Congress takes office in January. But Senate Majority Leader Mitch McConnell told Trump last week that this is unlikely due to time constraints, according to a report by The New York Times.

Other top Senate Republicans are pushing for a vote before 2018 ends, including Sen. Chuck Grassley, R-Iowa, who sponsored the bill along with 11 other senators. "Plenty of time to pass First Step Act in December," Grassley, the Senate Judiciary Committee's chairman, tweeted on Friday. "Will GOP senators & Ldr McConnell stand in Pres Trump's way of achieving major bipartisan victory or join in historic + popular reform?"

Sens. Lindsey Graham, R-S.C., a co-sponsor, and Rand Paul, R-Ky., have also called on McConnell to schedule a vote.

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A limited scope

Both parties have tried and failed to pass comprehensive criminal justice reform since the Obama administration. This latest iteration has garnered support from groups on all sides of the political spectrum, as well as the largest law enforcement organization, the Fraternal Order of Police. The libertarian-leaning Koch political network, which traditionally backs Republican candidates, also supports the First Step Act.

The bill focuses on reducing mandatory minimum sentences for drug offenders, who make up nearly half the federal prison population, according to the Congressional Research Service.

The United States Sentencing Commission estimates that roughly 2,250 inmates per year could have their sentences reduced under the new reforms included in the First Step Act. An additional 3,000 inmates could serve shorter sentences under the retroactive application of the 2010 Fair Sentencing Act, which reduced the discrepancy between sentences for crack and powder cocaine possession.

As a result, the First Step Act would affect less than 3 percent of the 181,000 inmates currently in federal prisons. It would have no bearing on state prisons, where the majority of the country's 1.51 million inmates are held.

"I don't think the impact on a system this size from these reforms will be substantial," Martin Horn, executive director of the New York State Sentencing Commission, told CNBC in an email.

While the Congressional Budget Office has yet to estimate the legislation's fiscal impacts, it has estimated the effects of two bills whose reforms are incorporated into the current proposal, giving a rough approximation of potential savings.

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Drop in the budget bucket

The first is legislation of the same name passed by the House in May, which did not make any changes to sentencing laws but did offer some anti-recidivism programs. The second is the Senate's 2015 Sentencing Reform and Corrections Act, also introduced by Grassley. It included most of the sentencing laws in the First Step Act.

As estimated by the Congressional Budget Office, the two bills combined would lead to a net reduction in discretionary spending of $729 million over the next 10 years.

The potential cost savings are "not big in scale relative to the size of the federal economy," Marc Goldwein, senior policy director at the Committee for a Responsible Federal Budget, told CNBC. The federal budget for the current fiscal year is $4.4 trillion, of which the Bureau of Prisons requested $7.15 billion.

One reason for the muted impact is the distribution of incarcerated people in the U.S. The vast majority of the country's inmates are held in state prisons. Goldwein believes that the bill could have real monetary implications if the federal government could "inspire states to follow their lead" and adopt similar reforms.

Ames Grawert, senior counsel at the Brennan Center for Justice at New York University, told CNBC that the bill "won't lead to the sort of changes that would let the federal government close a prison, for example, which would be a huge cost savings."

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However, a shrinking prison population under the First Step Act could allow the government to decrease its reliance on private prisons, which house 11 percent of federal inmates.

"There's a real possibility if the person who is in the attorney general's office was interested in closing private prisons," Grawert said.

In 2016, the last year of President Barack Obama's tenure, the Justice Department announced it would phase out private prisons, one of the reasons being that their costs were not substantially lower than government-run prisons.

But the DOJ reversed this directive last year under Attorney General Jeff Sessions, whom Trump forced out of office the day after midterm Election Day. Matthew Whitaker, whom Trump appointed acting attorney general, has not publicly commented on the First Step Act since assuming his position.

In addition to sentencing reforms, the bill would also expand opportunities for inmates to receive "good time" credits, which reduce sentence lengths, if they complete programs such as job training.

Individual inmates would be eligible to earn an extra seven days of credit per year, also applied retroactively. Yet Horn, of the New York State Sentencing Commission, said officials at the Bureau of Prisons have a "miserly" track record of granting credits.

An uncertain future as Dems take over

Senators eager to pass the First Step Act during the current lame-duck session worry that delaying a vote until next year will kill its chances of success, as the House, which will be controlled by Democrats come January, could push for more comprehensive reforms.

"GOP colleagues: NOW is time to pass crim justice reform unless your argument is that you prefer to work w Speaker Nancy Pelosi to pass a bill?" Grassley tweeted on Friday.

House Minority Leader Nancy Pelosi, who could become speaker of the House once Democrats take control, has not publicly commented on the First Step Act.

By contrast, current House Speaker Paul Ryan in a statement praised Trump's endorsement of the bill as "an encouraging sign that we can achieve substantive reforms to our criminal justice system in this Congress."