This page was last updated in December 2019.
In November 2014, we published a landscape of the criminal justice reform field and potential strategies within it. In August 2015, Chloe Cockburn joined us to lead our criminal justice reform program. In the spring of 2016, we approved the core components of this strategy document, which has structured Chloe’s grantmaking for the past several years. While in concept, this strategy document is a work in progress, Chloe has found that her commitments and analysis have been fairly stable, and there has been less variation in her strategy over time than she expected.
The analysis driving our work is as follows, at a high level: we see efforts to change the practices of prosecutors, increasing the capacity of criminal justice reform institutions, investing in the leadership of directly impacted people, and investing in policy reform campaigns to reduce the number of incarcerated and criminalized people as areas where there are gaps in the field and opportunities for successful outcomes. Chloe has additionally placed a lot of emphasis on funding with an ecosystem model, and has written about that.
- What is the problem?
- Organizational and funding landscape
- What we’re doing and why
- The following are sub-goals that Chloe has identified as strategic paths to substantially reduced incarceration:
- To work towards these outcomes, Chloe is prioritizing the following areas in her grantmaking:
- When considering individual potential grantees, we seek some combination of the following:
- Types of policy reform we see as impactful:
- Areas outside our current plans:
What is the problem?
The United States incarcerates its residents at a higher rate than any other industrialized country in the world, and at a substantially higher rate than other developed countries.1 People who live in poor communities and communities of color have much higher rates of incarceration than people in other communities.2 This high rate of incarceration, which rose steeply from the 1970s to about 2012,3 has cost hundreds of billions of dollars to sustain.4
The question of why incarceration has gone up so steeply since the 1970’s in the U.S. is contested. Chloe finds the analysis of John Pfaff compelling; he concludes that most of the rise in incarceration is attributable to the increasing number of prosecutors on the job and shifting charging practices whereby prosecutors now charge two out of three cases as felonies, whereas they used to charge two out of three cases as misdemeanors (prosecutors have a high degree of discretion whether and how to charge).5 Others have cited the war on drugs, which has focused resources on incarcerating people for drug use and sale, and which has also driven hundreds of thousands of parole and probation revocations and extended sentencing for multiple convictions.6 The proliferation of criminal offenses and increasing sentence length is another frequently cited cause.7 Some have pointed out that communities most impacted by crime and incarceration often vote and engage politically at lower rates, with democratic feedback loops favoring wealthier and whiter communities that have traditionally rewarded campaign promises to be punitive.8
Actors in the criminal justice system – prosecutors, legislators, judges and others – frequently justify punitive practices in the name of safety. We strongly agree that safety is critical for the health of individuals and communities, and the creation of safe communities should be an important goal of our criminal justice investments. Yet, under current criminal justice system practices, this need often goes unmet. Fifty-percent of violent crimes go unreported to law enforcement.9 Crime victims report feeling underserved by the criminal justice system, and experience high rates of trauma. Numerous jurisdictions have substantial backlogs of untested rape kits and unsolved murders. A major emerging theme of our strategy is to invest in organizations like the Alliance for Safety and Justice that prioritize listening to crime survivors from the communities most impacted by incarceration and ensuring that their vision of safety is represented. This is a more complicated analysis than simply attending to rising and falling crime rates, whose relationship to incarceration reform is contested. (Our senior researcher David Roodman has published this paper on this topic).
Excessive incarceration risks causing substantial suffering for individuals and communities, contributing to increasing poverty of families and children, decreasing job and education prospects, and in many others ways undermining human flourishing.10 These negative impacts of high rates of incarceration themselves risk undermining the safety of the communities affected, particularly communities of color.11
We assess success in this cause area in terms of reduction in incarceration. The following section sets forth Chloe’s understanding of the current state of the field, followed by a discussion of what we are investing in and why.
Note: Chloe’s analysis of the gaps and opportunities in the field, as reflected in this document, draws12 from her many relationships with advocates, organizers, policy experts, and others. When not specifically cited, claims represent Chloe’s view. Moreover, the word “we” below refers to the criminal justice reform program team (Chloe, Michelle, and Jesse).
Organizational and funding landscape
Organizations working to support advocacy to reduce mass incarceration
Criminal justice is largely a state and local issue; more than 90% of prisoners in the U.S. are in state facilities.13 At the federal level, the number of people incarcerated is larger than in Texas, the state system with the most people incarcerated, but not by much.14 Reforms to federal law are comparatively more challenging to win, given the general difficulty of moving bills through Congress. Administrative reforms have been happening and will likely continue to happen without our investment. Consequently, we anticipate that the majority of reform campaigns seeking to reduce the number of people incarcerated should focus on the state and county levels. Due to our strong focus on the states, the field scan below does not emphasize groups that are strongly focused on federal advocacy.
This section outlines the types of organizations we’re aware of that are working to substantially reduce the number of people incarcerated, drawing from Chloe’s experience and conversations with others in the field. This is necessarily an incomplete list, and focuses on organizations that help create outside pressure for change and/or that are geared toward policy reform to reduce the number of adults who are incarcerated:
- Well-established state-based policy reform advocacy groups in Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Illinois, Louisiana, Massachusetts, Michigan, Mississippi, New Jersey, New York, Ohio, Oklahoma, North Carolina, Oregon, Texas, Virginia, Washington, and Wisconsin that have focused on criminal justice reform for a number of years. These vary considerably in size and resources. As far as we know, most states other than those listed above have not had a group working proactively on adult criminal justice policy reform, though many state-based advocacy organizations have voiced to Chloe and others in the field that they are now shifting or expanding their focus to include work to reduce mass incarceration.
- Multistate and national advocacy organizations supporting efforts to enact policy reform at the state level and investing in state advocacy capacity to achieve reforms. These include: the Alliance for Safety and Justice (ASJ), FWD.us, Youth First!, the Drug Policy Alliance (DPA), the American Civil Liberties Union (ACLU), the US Justice Action Network, the REFORM Alliance, and FAMM. Chloe notes that the significant difficulty of passing meaningful state reforms is often overlooked and misunderstood. There’s danger of a group settling for a less meaningful reform in order to have good report back to funders - we see this happening a lot.
- Groups and individuals focused on organizing formerly incarcerated people , building a constituency base that can push for better elected representation and better policies. Groups in this category that we have funded include: Voice of the Experienced (Louisiana), The Florida Rights Restoration Coalition (Florida), A New Way of Life (Los Angeles), Free Hearts (Tennessee), and the National Council for Incarcerated and Formerly Incarcerated Women and Girls (national). The Quest for Democracy Fund housed at CJI in partnership with FICPFM (the formerly incarcerated and convicted persons and families movement) is funding dozens of emerging efforts building the leadership and organizing capacity of more groups, and can be a good way to contribute to these efforts without having to discern between them.
- Groups and individuals focused on developing a particular constituency for reform, such as crime survivors, women with incarcerated loved ones, and Latinx people. Examples include Crime Survivors for Safety and Justice (victims), Essie Justice Group (women), and Mijente (Latinx). Another much smaller group we have supported in this area is Amistad Law Project, in Pennsylvania, which has called attention to the many families that have one relative who has been killed while another family member is in prison for life.
- Groups and individuals leading with a conservative frame and value set. Right on Crime and its affiliated state groups (including the Texas Public Policy Foundation), Pat Nolan’s work with the American Conservative Union Foundation (which we have funded), and Justice Fellowship are some of these groups. There are also various ‘bipartisan collaborations’ that are funded by conservative and moderate funders.
- Government-partnership reform organizations that have made use of their connections with government leaders to achieve policy reforms in individual states. The Pew Charitable Trusts, the Council of State Governments (CSG) Justice Center, and to a lesser extent the Vera Institute fall into this category. We have not funded these to date.
- Basebuilding and Independent Political Organization groups at the national and state level, including faith-based, community organizing, and labor organizations, several of which are newer to the issue at the national organizational level, but whose affiliates and members have been deeply engaged for years. These are multi-issue groups that have prioritized criminal justice thanks to resources and the growing passion of their members on the subject. Examples include: Faith in Action, Working Families, Color of Change, the Texas Organizing Project, MOVE Texas, Citizen Action NY and VOCAL NY, the Ohio Organizing Collaborative, and New Virginia Majority, among others. We have also supported the Movement Voter Project, which specializes in moving resources to smaller groups in this category that would be hard for a national funder to know about.
- Organizations and efforts using the cultural capital of celebrities and other influencers to increase media coverage of the issue and build widespread support for change, in partnership with advocates and directly impacted people. John Legend’s #FreeAmerica campaign and Van Jones’s #Cut50 / REFORM campaigns are examples of this. We think it can be hard to have impact with this approach, given the distractions of fame and shine, though some can pull it off. One leader we notice being especially adept at skillfully working with influencers to move an impactful agenda is Patrisse Culllor, in Los Angeles, whose jail downsizing work we have supported.
- Practitioners on the local level exploring and promoting alternatives to the current system. Much of this work is hard to track, since methods of avoiding system contact may make the work invisible. This could be a very broad category when you include all the violence interruption groups and other community efforts to provide safety and community connection without involving law enforcement. You could also include many public defenders and some system actor allies who have fashioned diversion opportunities on the micro level, which tend not to grow since they are contingent on a particular judge or similar person’s cooperation. Our funding has focused on supporting efforts to increase access to restorative and transformative justice, two methods that have some evidence for impact in various contexts and have been shown to provide high satisfaction on the part of people harmed by crime. We support the Restorative Justice Project at Impact Justice, provide operations funding for the Life Comes From It fund that gives small grants to restorative, transformative, and peacemaking justice projects around the country, and support Mariame Kaba’s work with Survived and Punished.
- Organizations focused on data collection, research and analysis. No existing group is the ‘go-to’ for the field on data and research questions. A few of the leading organizations active in this role (in diverse ways) include: the Prison Policy Initiative (which we have funded), Measures for Justice, Justice Strategies, The Sentencing Project, The Urban Institute, the Pew Public Safety Performance Project, The Council of State Governments Justice Center, the Vera Institute, and the Harvard Kennedy School’s Program in Criminal Justice. Two key federal agencies doing this work are the Bureau of Justice Statistics (BJS) and the National Institute of Justice (NIJ).
- Organizations with a specialty focus, such as prosecutorial reform, bail reform, fines and fees reform and so on. We have funded a lot of work in the prosecutor space. An example of a specialty organization for prosecutors is Fair and Just Prosecution. We tend to think that funding work for particular policy reforms (such as bail reform), may have limitations, given the varying ripeness of various policy issues, the danger of pushing groups to zero-in on a policy when system actors are able to quickly adapt and push different policies that may have the same effect, and the danger of signaling too clearly to anti-change forces what the intended target is.
- A few organizations focused on communications and narrative, which is a broad category that includes everything from increasing public awareness on the issues through to strategic communications and persuasion. On the information side, there is The Appeal (which we have supported), the Marshall Project, and various other publications that are increasing their attention on this issue. On the strategic communications side, we have funded Color of Change, The Justice Collaborative, and trainings at the ReFrame Academy for grantees seeking to increase their capacity, in addition to providing grants to particular organizations to increase communications. The Just Mercy film rollout and associated advocacy campaigns is another example of a major effort in the field to increase public awareness and support for reform.
- Several groups focusing on the commercial interests driving incarceration. Some groups that have done research and advocacy on private prisons, for example, include Freedom to Thrive, In the Public Interest, and Grassroots Leadership. A newer effort that focuses squarely on reducing commercialized incentives in the prison industry is Worth Rises, which published this helpful report on the 4000 companies profiting from incarceration. Worth Rises has done unique advocacy to reduce the profitability outlook of private companies that are operating in a predatory manner in this space.
- Litigation firms challenging imprisonment practices in court, despite Supreme Court decisions that limit the scope of such claims. Civil Rights Corps, The Equal Justice Initiative (EJI), the ACLU, the Prison Law Office, the Southern Center for Human Rights (SCHR), the Center for Constitutional Rights (CCR), and the Southern Poverty Law Center fall into this category.
Organizations funding criminal justice reform work
Estimating the amount of resources going into the field with a focus on reducing the number of people incarcerated in this country has been hard. Funders may not be transparent about their giving, and it can be far from straightforward to decide what is and isn’t work focused on reducing incarceration. What follows is an imperfect look at major sources of CJR funding.
On the public/govt side, billions of dollars flow into criminal justice projects every year. Disaggregating what portion of those dollars is going to reform vs. continuing current practices is beyond the scope of this document, though as one example of the current dynamics, others have noted that federal funding has played a substantial role in entrenching negative practices. One bucket of federal funding specifically geared towards policy reforms that reduce incarceration is for “Justice Reinvestment” policy reform efforts (“JRI”). In 2015, the amount allocated by the federal government to JRI was $27.5 million. 15 Another very substantial public funding source is the very large (at one point it was $1 billion) pot of asset forfeiture funds controlled by Manhattan District Attorney Cy Vance, which are limited to being used for projects in New York City, and have thus far been directed to institutional bodies like the NYPD. We have also seen a few state level justice reinvestment initiatives, most notably in Colorado.
On the private side, we see the following funders supporting work directed towards substantially reducing incarceration for adults (as opposed to other types of criminal justice reform, such as policing reform):
- National foundations investing more than $5 million a year include: Open Philanthropy, Open Society Foundation, Art for Justice, Heising-Simons Foundation, Mountain Philanthropy, Galaxy Gives, the Ford Foundation, the Laura and John Arnold Foundation, the MacArthur Foundation, the Public Welfare Foundation, and The Pew Charitable Trusts. There are several other newer funders that have not yet assessed how much to disclose about their funding levels.
- Family foundations making small- to medium-sized grants (usually on the order of $25,000 to $150,000) of which there appear to be many, though we have not invested in tracking them. Often these foundations have made the first grants to efforts that have later attracted major institutional support, such as Just Leadership USA. We would like to connect more with these foundations.
- Local foundations investing in criminal justice reform with a focus on particular states or regions. Examples include the Tow Foundation and the Gund Foundation.
- Large individual donors in a few states who have put more than $1 million into reform on this issue. Chloe is aware of this happening in California, New York, Pennsylvania, and Washington; there are likely others. We expect that other individuals are likely to come forward as the field develops and more grant opportunities appear, potentially in part as a result of our work. We are encountering these donors as we go and have a very incomplete map of them. We are interested in connecting with this type of funder to share ideas and experiences.
- Donor networks, such as the Women’s Donor Network, Solidaire, Resource Generation, and the Threshold Foundation, have supported CJR with small and midsize donations over the past several years.
- Corporate funding. Most noted in the news, Koch Industries, along with the Charles Koch Foundation and the Charles Koch Institute, have made investments in reform efforts.
Making some guesses and rounding up, we estimate that there is about $250 million per year going from these funders into reducing the number of adults incarcerated in jails and prisons in the United States. We don’t have much confidence in this estimate, given the difficulty of tracking giving in this space.
Our take on the landscape
The following statements are grounded in Chloe’s analysis of the state of the field, informed by conversations with many advocates, scholars, and organizers:
- Strikingly, the core value of safety is often missing from discussions about criminal justice reform. In public discourse, the values of safety and freedom tend to be set against each other, suggesting that more freedom means less safety. Research suggests the opposite, showing that piling on years of probation terms or incarceration may have a net negative effect. David Roodman’s research report for Open Philanthropy found a zero net effect of incarceration on crime at typical policy margins in the United States today, and that didn’t account for the fact that there is a large amount of crime in prisons, ranging from assaults by guards and prisoners, including sexual assault, theft, and similar abuses. Yet even though there is good evidence to suggest that prison and jail risk decreasing safety in the short and long term, many advocates cede the terrain of safety talk to anti-reform forces.
- The current political window represents a substantial opportunity to advance smart policy reform packages at the state and county level.16 This window may close, so it’s important to seize it now and put infrastructure in place to prolong it.
- Based on the current trajectory, we expect that incarceration reductions as a result of even the best state policy legislative reform packages will be relatively modest. Based on our understanding of what types of state legislative reforms will be feasible within the current political climate, a 25% reduction in incarceration over ten years in a given state would be about as impressive a win as we would expect to see.17 This is substantial, but we think still larger impacts could be beneficial and possible in the long run. For this reason, we have diversified the portfolio to include reform efforts that seem to have a good chance of changing longer term conditions.
- There is a lot of excitement behind prosecutorial reform.18 Chloe has found that numerous groups across the spectrum are eager to do prosecutor accountability work in various forms, and that prosecutorial associations and leaders are feeling the pressure of new demands for accountability and beginning to change how they work. Chloe has placed a lot of emphasis on prosecutorial reform in the portfolio.
- There appears to be wide agreement in the field that to achieve the kinds of reforms that will result in reductions beyond 25%, the space of what is politically possible will need to be significantly expanded. As many in the field have noted, this will require dramatically lowering the public’s tolerance for incarceration and shifting norms around when, why, and how it’s appropriate to use criminal justice infrastructure.
Scholarship has found that major shifts in the political landscape have historically been driven by mass movements led by directly affected parties.19 In Chloe’s view, the Movement for Black Lives has caused important and helpful shifts in how the public thinks and talks about race and criminal justice, but much more is needed to turn the public against mass incarceration. Chloe believes that the expansion of what is politically possible cannot be achieved without mobilizing a large base of directly impacted people – for example, people convicted of crimes, people who have spent time in jail and/or prison, crime victims, their families, and their communities. We think that building this constituency must be done from the ground up, hence our attention to county-level organizing work.
- We see a lack of focus on reducing incarceration, even in some policy efforts that purport to focus on reductions. While the phrases “criminal justice reform” and “mass incarceration” may sometimes be used interchangeably, not all criminal justice reforms pertain to reducing mass incarceration. For example, reducing the number of seldom-applied criminal statutes does not address the drivers of a substantial amount of incarceration. Similarly, major funding to increase access to job opportunities will not address systemic drivers of incarceration.
- The pressure that some organizations feel to generate short term wins may be driving long term negative outcomes. For example, an organization might push to pass a state bill without waiting for or engaging with community groups in the state; four years later when there’s been legislative turnover, that bill can be completely erased with no one fighting for it. We’ve seen this in 2 states. To take another kind of example, pushing for bail and other pretrial reforms at any cost can easily result in mass surveillance of people accused of crimes (such as having unpaid parking tickets), who are forced to wear monitoring devices. Given that many people arrested probably don’t need to be in the criminal justice system in the first place, quick fixes to get them out of jail that result in demeaning, costly, and risky supervision may be a net negative in the long run.
- Based on her experience in policy reform, Chloe believes that public support for significant changes to the existing justice system is unlikely to come without a persuasive vision of what could replace the functions of mass incarceration.While alternatives exist and are being tested, such as restorative justice, the field has not yet developed a broad consensus vision of “what comes next.” A major challenge includes establishing and scaling alternatives that meet the need for accountability without extreme punishment.
- A powerful political constituency does not currently exist across the country that is pushing for reforms to reduce mass incarceration, though in certain places, such constituencies have begun to form and have had an impact on elections. We see this especially in California.
- The communications infrastructure of the field has traditionally been weak.We think a major effort to provide communications training to advocates and organizers on the ground would be beneficial and would encourage funders to look at supporting that.
- Some of the best funded efforts focus narrowly on a particular policy reform, such as bail reform. This runs the risk of both constraining advocates and organizers to always focus on that policy, rather than flexibly adapting to changing opportunities and threats, and also sends the false message that fixing that policy will fix a huge chunk of the problem. To take just the bail example, one of the most famous cases of ‘person who sat in jail because they couldn’t pay’ was Kalif Browder, the teenager who was held for years without trial in New York City after allegedly stealing a backpack. Most people (including myself, until recently), thought Mr. Browder was stuck in jail because he and his family were unable to pay bail. In fact, he was held, because the arrest on the backpack theft charge violated the terms of an earlier probation agreement, so he was on a “probation hold.” Bail reform or no, he would not have been released from jail.
- Until recently, the number of dedicated, knowledgeable and skilled advocates working for proactive, systemic change on this issue has been small. The base of knowledgeable advocates and players with enthusiastic support for reform is growing but is not yet commensurate with the technical complexity and scope of reforms we’re eventually hoping for. We have seen a couple of groups that provide skilled technical assistance in this area and would love to see more funders supporting this.
What we’re doing and why
Our goal in this cause area is safely reducing incarceration through cost-effective investments. We have been investigating the relationship between incarceration and crime in some depth, and plan to write more on our findings and thoughts about this connection. We find it very likely that it is possible to design and implement reforms to the current U.S. criminal justice system that, on the whole, will substantially reduce incarceration rates while maintaining or improving public safety. However, we do not plan to restrict our activities to specific potential changes that we expect to “balance out” in this way.
Each grant is subject to a cost-effectiveness calculation based on the following formula:
Number of years averted x $50,000 for prison or $100,000 for jail [our valuation of a year of incarceration averted] / 100 [we aim to achieve at least 100x return on investment, and ideally much more] - discounts for causation and implementation uncertainty and multiple attribution of credit > $ grant amount. Not all grants are susceptible to this type of calculation, but we apply it when feasible.
The following are sub-goals that Chloe has identified as strategic paths to substantially reduced incarceration:
- Creating the conditions for very substantially increased accountability at the local level for elected officials and administrators. The people most impacted by crime and incarceration are leading this work.
- Changed public and policymaker attitudes: There is much increased public awareness that prison is in many ways the problem. Punitive incarceration takes a nose dive in public support; there is public discussion about when if ever it’s warranted.
- Alternatives to criminal punishment as a way of addressing harms and holding people accountable are developed and tested and ready to be deployed in jurisdictions that want them.
To work towards these outcomes, Chloe is prioritizing the following areas in her grantmaking:
- Resourcing advocates to engage in state and local policy reform, focusing on policies most likely to impact the number of people incarcerated while maintaining or improving individual and public safety.
Representative grants: Justice LA; the Alliance for Safety and Justice; Smart Justice California.
- Investing in multi-directional pressure on prosecutors to focus more on serving communities broadly, and less on convictions and harsh sentencing.
Representative grants: Fair and Just Prosecution; Color of Change; the Texas Organizing Project; New Virginia Majority.
- Supporting the leadership development and growth of constituencies to advocate for criminal justice reform, including faith communities, formerly incarcerated people, and crime victims.
Representative grants: VOTE (Louisiana); The National Council for Incarcerated and Formerly Incarcerated Women and Girls; Crime Survivors for Safety and Justice (funded through ASJ); LA Voice, Essie Justice Group.
- Investing in projects demonstrating alternative approaches to dealing with harms currently resulting in incarceration, with the goal of showing political viability of these solutions.
Representative grants: Impact Justice, Life Comes From It.
These are the areas of focus that we feel are important, where investments of resources can make a difference, and where there are gaps in funding.
Overall, the goal is to support the development of groups geared towards expanding the political space to achieve bigger wins – from policy change advocacy, to creating the political demand for change and for viable alternative solutions, to leadership development, to transforming the role of system leaders like prosecutors, to community organizing, to the building of a cultural movement. Chloe recognizes the value of other pieces of work, such as increasing the quality, transparency, and availability of criminal justice data, rigorously testing alternative approaches and implementing the most successful ones, and supporting system actors to change their processes to ones that are more fair, but believes those pieces are comparatively well resourced by other funding sources (though many of those organizations have some degree of room for more funding).
When considering individual potential grantees, we seek some combination of the following:
- An excellent leader or leadership team.
- A plan to achieve (or help others achieve) significant incarceration reductions based on a rigorous analysis of the nature of the problem. We prefer a plan to achieve durable policy victories and practice improvements (i.e., victories and improvements accompanied by a process and infrastructure that makes them unlikely to be reversed later), though riskier high-value victories are also of interest. Given the goal of significant reductions, we are more likely to fund work in jurisdictions with a large number of people incarcerated.
- Good reasons to believe that the grantee will be able to execute on its plans for impact, with an efficient ratio of dollars to impact.
- Leadership that is politically sophisticated and takes advocacy, power building, and organizing seriously. While there are numerous technical problems to solve in order to make progress in this area, we believe that this is primarily a political problem that will require political solutions.
- Ability to work with a diverse range of partners and players, including system actors, elected officials on both sides of the aisle, and community leaders.
- A sophisticated analysis of race and racial justice, which we believe is correlated with a good understanding of the problem of mass incarceration, though we recognize that not all grantees will explicitly lead with this.
- Understanding the value of the leadership and knowledge of people most impacted by mass incarceration, and incorporating that leadership into the strategic design.
- The ability to identify highly effective groups working in a range of localities and make strategic subgrants to those groups.
Types of policy reform we see as impactful:
Since a significant portion of our grantmaking will go to support policy reform work, below, we list some broad policy themes that we believe are promising in terms of reducing incarceration while maintaining or improving public safety. Note however that while our team has views on what policy changes may be most impactful, we tend to give general support grants rather than mandating that a grantee take up a certain policy effort. We do this because (1) conditions on the ground may change and we want grantees to be responsive to those conditions as they see fit; (2) we have seen system actors quickly switch from one type of enforcement to another in order to maintain status quo incarceration, which lessens the impact of a particular policy change; and (3) because we think the problem is a political one, rather than a technical one, we think the type of campaign and organizing is usually more important than the specific policies.
That said, here is a very general overview of interventions that may be effective in reducing incarceration:
- Reducing the number of crimes (such as drug possession) treated as felonies or groups (such as young adults) eligible for felony convictions.
- Shortening prison stays. Our impression is that in many cases, the amount of time people spend in prison can be reduced without increasing crime. Examples of reforms that could reduce sentence lengths are abolishing mandatory minimums, eliminating laws that require a person to serve a fixed portion of the underlying sentence before they can be released, and increasing parole grant rates.
- Reducing how many people are held in local jails. In all states, people held in local jails make up a substantial proportion of incarcerated people;20 a majority of local jail inmates have not been convicted of a crime.21 Potential reforms to lower these numbers include reform of pretrial processes (including bail), and expanding diversion programs (without expanding costly and risky surveillance) that act as an alternative to jailing.
- Reallocating public spending from incarceration to other areas, such as community support infrastructure, support for victims/survivors, health, rehabilitation, and alternatives to incarceration.
Areas outside our current plans:
Here we list some areas that could fall under the umbrella of criminal justice reform, but that we are not planning to prioritize, in part because our CJR team wants to stay focused on making large and impactful investments in a limited number of channels, and in part due to a strategic assessment about what approaches are practically geared to substantially reducing mass incarceration.
We are also not planning to prioritize the following broad types of work:
- Cross-cutting research, e.g. by think tanks or academia: We do not plan to make major investments in research about the criminal justice system broadly. We may support individual research projects in pursuit of other priorities. We see other funders taking the lead on this.
- Film: It seems plausible to us that investing in feature and documentary films could be an effective way to impact popular thinking on important topics in criminal justice. However, we do not think we are in a position to assess which film narratives are likely to be the most impactful in shaping the thinking of the public. Accordingly, we do not believe that we should prioritize engaging in this type of work at present.
- Funding or organizing system actors (e.g. police chiefs, sheriffs, prison officers, etc.) to adopt improvements: Several other funders are prioritizing this. That said, we are investing in organizing prosecutors as part of our multi pronged prosecutor reform strategy.
- 1. International Centre for Prison Studies, Prison Population Rate
- “Incarceration is concentrated in communities of disadvantage, especially communities of color. Because residential housing is segregated and incarceration is concentrated among poor black men, incarceration is a particularly dominant characteristic of a small number of urban, impoverished neighborhoods. In those places, parent-aged adults, especially men, cycle through stays in prison and jail at astounding rates.” Clear 2008, pgs. 100-102.
- For an example of differences in incarceration rates at the neighborhood level, see Badger 2015.
- 3. National Research Council 2014, figure 2-1, pg. 35.
To our knowledge, the financial impact has never been fully calculated, nor do we know the full impact of these social harms on public safety. By some counts, $80 billion a year is spent on running state and federal corrections systems. We are not aware of a cost estimate that includes the total cost of prisons, police, courts, defense attorneys, and prosecutors, plus the social harms such as lost wages, decreased life expectancy, etc., nor does this amount account for the huge investment in constructing jails and prisons over the past several decades.
- 5. Pfaff 2012:
- Pg. 1: “In short, the growth in prison populations has been driven almost entirely by increases in felony filings per arrest. All other possible sites of growth— arrests, admissions per filing, convictions per filings and admissions per conviction, and even (perhaps most surprisingly) time served per admission—have barely changed over the past four decades. But the growth in filings tracks that of admissions almost perfectly. This paper demonstrates the importance of felony filings and considers some of the possible explanations for their growth.”
- Pg. 10: “Figure 3A tells the central story of this paper: unlike the volume of arrests, that of felony case filings tracks the number of admissions quite closely. In my thirty-four state sample, between 1994 and 2008 filings grow by 37.4% (from 1,392,418 to 1,913,405) while admissions grow by an almost-identical 40% (from 359,359 to 504,715). The decision to file charges thus appears to be at the heart of prison growth. The importance of the filing decision can be highlighted even more sharply by separating out two trends: filings per serious arrest, and admissions per filing. Figure 3B plots the aggregate results for these two trends, and the patterns are clear. The rate of filings per serious arrest rises almost every single year, from 0.375 in 1994 to 0.573 in 2008, an increase of about 1.6 percentage points (or about 3.2%) per year. Conversely, admissions per filing barely grow at all, from 0.258 in 1994 to 0.264 in 2008, peaking at 0.271 in 1999. In short, once a felony charge is filed, the risk that a defendant ends up in prison has remained roughly constant; but the risk of that filing occurring in the first place has trended upward strongly.”
- 6. For example, see Alexander 2012 and Drug Policy Alliance 2016.
- 7. For example, see Clear and Austin 2009.
- 8. For example, see Stuntz 2011.
- 9. “During the period from 2006 to 2010, 52% of all violent victimizations, or an annual average of 3,382,200 violent victimizations, were not reported to the police.” Bureau of Justice Statistics 2012, pg. 1
- 10. In addition to the harm of incarceration itself, harms include, but are not limited to: millions of people living with a criminal record and the numerous legal restrictions that go with that status, including the loss of voting rights by six million people who are disproportionately black, a heavy toll on the physical and mental health of people who have been incarcerated as well on as their families, sexual violence and trauma in jails and prisons, infectious diseases spread in jails and prisons, prisoners spending years in solitary confinement, the much increased risk that a child with an incarcerated parent will himself or herself be incarcerated, a significant reduction in the earning capacity of people impacted, health impacts on people who are unable to secure treatment resources due to the stigma of criminalization, diluted political power of communities most impacted by incarceration, numerous local economies dependent on incarceration, a reduction in resources available to invest in alternative solutions, community development, and services for people harmed by crime and violence. The divestment from social service infrastructure that has occurred at the same time as the ramp of of incarceration as placed many millions of people in vulnerable positions (i.e. lack of housing, health care, drug treatment, etc) that increase their chances of being drawn into the criminal justice system.
- 11. See Clear 2008.
- 12. The following people reviewed the first draft of this strategy at Chloe’s request and provided feedback: Daryl Atkinson, Danielle Sered, Zoe Towns, Lenore Anderson, Pastor Kenneth Glasgow, Vinny Schiraldi, Marc Mauer, Jeremy Travis, Adam Gelb, Julie James, Christie Donner, Kaitlyn Krieger, John Cutler, Leonard Noisette, Ana Correa, Nick Turner, Amy Crawford, gabriel sayegh, Lorenzo Jones, Alec Karakatsanis, and Glenn Martin. In addition, of the ideas that Chloe has presented here draw on the work of the following people: Norris Henderson, Vanita Gupta, Andrea James, Seema Sadanandan, Rob Smith, Bianca Tylek, Carlos Saavedra, Paul Engler, Michelle Alexander, Mariame Kaba, Daniel Espinoza, Rashad Robinson, Marc Levin, Seema Gajwani, David Fathi, Robert Rooks, Pat Nolan, Ana Zamora, David Rogers, William Stuntz, and many others.
- 13. See Bureau of Justice Statistics, Prisoners in 2014, table 2, pg. 3
- 14. Bureau of Justice Statistics 2015, appendix table 1, pg. 12.
- 15. Bureau of Justice Assistance, private email
- 16. In our November 2014 cause report, we described hearing from multiple sources that a combination of factors had created a unique window of opportunity to accomplish criminal justice reform. We consider this window for criminal justice reform to still be open, notwithstanding the shifting grounds of U.S. politics. At the federal level, key conservative influencers continue to push for reforms. At the local level, there has been a recent wave of reform-minded prosecutors winning elections, defying the trend of ‘toughest on crime’ prosecutorial election politics. Moreover, campaigns grounded in the value of safety have achieved unprecedented consensus for reform. Chloe further believes that there is an unusual opportunity now for a paradigm-shift in how our society responds to harm, and that a very substantial investment in the short term could achieve transformative results. That said, our investment in this cause is predicated on the value of investing in high-impact incremental reforms, not the promise of transformative paradigm-shifting reforms.
- 17. Yet, a 25% reduction in all state and local jails would still leave nearly 1.5 million people incarcerated.
The estimate that a 25% reduction over ten years would be ambitious is based on projections of the impacts of previous comprehensive reform bills. An example is Mississippi’s 2014 sentencing and corrections reform package, which is projected to reduce prison populations to around 21,000 by 2024, compared to projections of around 24,500 without the reforms (a reduction of around 15%). (See Pew Charitable Trusts 2014, figure 1, pg. 1.)
Ballot initiatives, an option in 20 states in the country, may prove a viable option for winning substantial incarceration reductions at possibly greater percentages. However, it is too early to tell how substantial the reductions achieved by ballot measure reforms, such as Proposition 47 in California, will be. Proposition 47 changed several nonviolent drug and theft felonies to misdemeanors, applied the change retroactively, and requires reallocation of the prison costs saved into prevention, treatment and victim services. According to early estimates Chloe has seen, since its passage the measure has reduced state prison and county jail populations by more than 15,000 people, and reduced the number of felonies filed in many California county courts by 25 to 30 percent. (See also Bird et al. 2016.) What this will amount to over 10 years is hard to predict, since the measure just passed in late 2014.
- 18. Possible areas of intervention include changing how prosecutors are elected, make their charging decisions, are promoted, are trained, are evaluated, engage with their associations, and testify before legislatures. See Stuntz 2011 and Pfaff 2012 for analysis of the role of the prosecutor.
- 19. Examples include the movements for women’s rights, civil rights, LGBT rights, and labor rights. See Engler and Engler 2016, Moyer et al. 2001, and Piven and Cloward 1977 for more on the history of mass movements.
- 20. The number of inmates in local jails as a percentage of total inmates in a given jurisdiction is 50.8% in Louisiana, 41.4% in Kentucky, 29.6% in Mississippi, 27.8% in Tennessee, and 23.7% in Utah. Bureau of Justice Statistics, Prisoners in 2014, table 9, pg. 14
- 21. In 2014, there were 467,500 unconvicted inmates in local jails and 277,100 convicted inmates. Bureau of Justice Statistics, Jail Inmates at Midyear 2014, table 2, pg. 3
- 22. The Plata case in California (which required California to substantially cut the number of people incarcerated in its overcrowded prisons in order to comply with health and safety requirements) had a large impact on the trajectory of incarceration in that state, including by playing a role in creating the conditions for the passage of Proposition 47 (which reclassified several felonies as misdemeanors in order to reduce prison populations) in 2014.
Based on conversations with litigation experts within the criminal justice reform field, we do not believe that there are further promising cases of this kind that could be pushed forward now or in the near future. Our understanding is that these cases take an extremely long time to develop (sometimes decades), and that the courts have increasingly foreclosed avenues for impacting policy through lawsuits against conditions inside prisons or jails. Cases that challenge conditions of confinement that don’t pertain to reducing incarceration are outside our area of focus.