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. Given the experience and network that Chloe brings to the position, we chose to move ahead with making several initial grants based on her guidance, rather than spending time to develop a strategy up front.
In the spring of 2016, we approved the core components of this strategy document, which has structured Chloe’s grantmaking for the past year. We recently made it a priority to update and correct the document for public distribution. 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 now is broadly consistent with what we laid out in the November 2014 document. In particular, we still see efforts to change the practices of prosecutors, increasing the capacity of criminal justice reform institutions, 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. Since the November 2014 document, we have taken steps to explore and make investments in these areas. We have also identified some additional areas and zoomed in on some sub-areas from our previous analysis to guide our thinking going forward.
Chloe’s analysis of the gaps and opportunities in the field, as reflected in this document, draws from her many relationships with advocates, organizers, policy experts, and others.1 When not specifically cited, claims represent Chloe’s views. Moreover, the word “we” below refers to Chloe and Michelle Crentsil (Chloe’s associate for criminal justice reform).
Published: March 2017
Published: March 2017
- What is the problem?
- Organizational and funding landscape
- What we’re doing and why
What is the problem?
The U.S. 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.2 In particular, people who live in poor communities and communities of color have much higher rates of incarceration than people in other communities.3 This high rate of incarceration, which rose steeply from the 1970s to about 2012,4 has cost – we would estimate - hundreds of billions of dollars to sustain.5
The question of why U.S. incarceration rates have gone up so steeply since the 1970s 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 and shifting charging practices whereby prosecutors now charge a substantially higher proportion of cases as felonies compared with 20 years ago (prosecutors have a high degree of discretion over whether and how to charge).6 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.7 The proliferation of incarceration-eligible offenses and increasing sentence length is another cited cause.8 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.9
Excessive incarceration risks causing substantial suffering for individuals and communities, contributing to increasing poverty, decreasing the job and education prospects of formerly incarcerated people, and in many others ways undermining human flourishing. (See footnote for more.)10
Prosecutors, legislators, judges and other actors in the criminal justice system frequently cite the safety of individuals and communities to justify punitive incarceration practices. However, current criminal justice system practices appear to us to often fail to meet safety needs: for instance, about fifty percent of violent crimes in the U.S. go unreported to law enforcement.11 Chloe’s understanding from working with crime victim advocates is that crime victims frequently report feeling underserved by the criminal justice system, and experience high rates of trauma.
We strongly agree that safety is critical for the health of individuals and communities, and the creation of safe communities is an interest that informs our criminal justice investments. A major emerging theme of our strategy is investing in organizations like the Alliance for Safety and Justice that lead with an analysis of how to most effectively deliver safety to communities. This is a more complicated analysis than simply attending to rising and falling crime rates, whose relationship to incarceration reform is contested. (Our senior advisor David Roodman has a forthcoming paper on this topic). We also think the negative impacts of high rates of incarceration described above often themselves create safety risks for the communities affected, which are disproportionately communities of color.12
We assess success in this cause area in terms of safe reduction in incarceration. The remainder of this document sets forth Chloe’s understanding of the current state of the field, followed by a discussion of what we are investing in and why.
Organizational and funding landscape
We view criminal justice reform as largely a state and local issue. More than 90% of prisoners in the U.S. are in state facilities.13 (For reference, the number of people incarcerated at the federal level is roughly similar to the number incarcerated by Texas, the state with the largest incarcerated population.14) It is also our impression that reforms to federal law are comparatively more challenging to win; the latest federal sentencing reform bills have moved slowly, and the 2016 election has contributed to uncertainty about the future of federal criminal justice reform. We believe that administrative reforms will likely continue to happen without our investment. Consequently, we anticipate that campaigns seeking to reduce incarceration will have the most impact by focusing on reforms at the state and local levels.
Because of our decision to focus primarily on the state level, the field scan below does not emphasize groups that are strongly focused on federal advocacy.
Organizations working to support advocacy to reduce mass incarceration
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, Louisiana, Massachusetts, Michigan, New Jersey, New York, Ohio, North Carolina, Oregon, Texas, 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 groups 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), the Drug Policy Alliance (DPA), the American Civil Liberties Union (ACLU), the Coalition for Public Safety (CPS) and its sister organization the U.S. Justice Action Network (USJAN), Families Against Mandatory Minimums (FAMM), and the Sentencing Project, among others.
- Organizations and individuals focused on increasing the political and advocacy power of formerly incarcerated people, on the basis that “those closest to the problem are closest to the solution.” This category includes: Glenn Martin (JustLeadershipUSA), Norris Henderson (Voice of the Ex-Offender), Desmond Meade (Florida Rights Restoration Coalition), Vivian Nixon (College and Community Fellowship), Susan Burton (A New Way of Life Reentry Project), Pastor Kenneth Glasgow (The Ordinary People’s Society), Dorsey Nunn (Legal Services for Prisoners with Children), Manuel LaFontaine (Legal Services for People with Children), Daryl Atkinson (BJA Fellow), and many others.
- Groups and individuals leading with an explicitly politically 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, and Justice Fellowship are some of these groups.
- 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.
- Basebuilding and Independent Political Organization groups at the national and state level, including faith-based, community organizing, and labor organizations, several of which are new to the issue at the national organizational level, but whose affiliates and members have been deeply engaged for years. Examples include the PICO network, People’s Action, the Center for Working Families, Color of Change, the Texas Organizing Project, the Ohio Organizing Collaborative, and New Florida Majority.
- 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 campaign are examples of this.
- Numerous direct service providers exploring and promoting alternatives to the current system. Often said to provide “alternatives to incarceration” or “direct services,” these groups have in many places collaborated with advocates to push for policy changes. These range from public defender offices to organizations with deep criminal justice reform expertise, such as Impact Justice (based in Oakland) and Common Justice (based in Brooklyn), both of which are leaders in using restorative justice as an alternative to incarceration for serious crimes, and the National Network for Safe Communities (based in New York City), which has spearheaded the Ceasefire program and other similar interventions.
- Crime victims and victim advocates. There is a growing movement of crime victims voicing their dissatisfaction with current practices and calling for reform. For example, Crime Survivors for Safety and Justice, based in California but soon to expand nationally, organizes crime victims to call for criminal justice systems that better serve victims.
- Organizations focused on data collection, research and analysis. We do not view any existing group as 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: 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, the Harvard Kennedy School’s Program in Criminal Justice, and the Prison Policy Initiative (PPI). Two key federal agencies doing this work are the Bureau of Justice Statistics (BJS) and the National Institute of Justice (NIJ).
- A few organizations focused on communications, which we see as a neglected part of the field. These include the Marshall Project, a news organization focused on criminal justice, and the Opportunity Agenda, which has supported advocates in the field with media trainings and messaging analysis.
- Several groups focusing on private prisons, and the incentives created by private contracting to over-criminalize and over-punish. These groups include: Enlace, In the Public Interest, and Grassroots Leadership.
- 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 the U.S. has been hard. What follows is an imperfect look at major sources of criminal justice reform funding.
On the public side, billions of dollars flow into criminal justice projects every year. Disaggregating the portions of this funding going to reform vs. continuing current practices is beyond the scope of this document. One bucket of federal funding specifically geared towards policy reforms that reduce incarceration is for “Justice Reinvestment Initiative” (“JRI”) policy reform efforts. In 2015, according to a source at the Bureau of Justice Assistance, the federal government allocated $27.5 million to JRI.15 Another very substantial bucket of public funding, some of which has been directed to criminal justice reform, is the roughly $800 million in asset forfeiture funds controlled by Manhattan District Attorney Cy Vance.16
On the private side, we are aware of 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 $4 million a year include: Open Philanthropy, Open Society Foundations, the Ford Foundation, the Laura and John Arnold Foundation, the MacArthur Foundation, the Public Welfare Foundation, and The Pew Charitable Trusts. Atlantic Philanthropies was a big funder in the past, but has now wound down its last grants.
- 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 JustLeadershipUSA. 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 George 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 and the Threshold Foundation, have supported criminal justice reform with small and midsize donations over the past several years.
- Corporate funding. Perhaps most prominently noted by the media, Koch Industries (along with the Charles Koch Foundation and the Charles Koch Institute) has made investments in reform efforts.
Very roughly, we estimate that these funders (not including Open Philanthropy) direct about $80 million total per year toward reducing the number of adults incarcerated in jails and prisons in the U.S. However, we don’t have a high degree of confidence in this estimate, given the difficulty of tracking funding 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.
- The current political window represents an opportunity to advance smart policy reform packages at the state level.17
- 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 large a reduction as we would expect to see.18
- 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 likely 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 an 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. This mobilization is beginning to happen - see the Formerly Incarcerated, Convicted People and Families Movement (FICPFM) conference in Oakland in 2016 - but it’s still relatively nascent.
- 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 “reducing mass incarceration” are sometimes used interchangeably, not all criminal justice reforms pertain to reducing mass incarceration. For example, having seldom-applied criminal statutes taken off the books does not address the drivers of a substantial amount of incarceration.
- There is a lot of excitement behind prosecutorial reform.20 Chloe has found that numerous groups across the political spectrum are eager to do prosecutor accountability work in various forms, and that prosecutorial associations and leaders appear to be responding to the pressure of new demands for accountability and beginning to change their practices. Chloe has placed a lot of emphasis on prosecutorial reform in her grant portfolio.
- 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 such as restorative justice exist and are being tested, the field has not yet developed a broad consensus vision of “what comes next.” A major challenge will be establishing and scaling alternatives that meet the need for accountability without extreme punishment.
- There is not currently a powerful, nationwide political constituency pushing for reforms to reduce mass incarceration, though in certain places, such constituencies have begun to form and have had an impact on elections.
- The communications infrastructure of the field has been weak in the past. While several national groups devote resources to communications, a large number of state-level groups lack basic communications capacity. As a result, many groups lack the capacity to engage most effectively with the public and decisionmakers. Moreover, there are limited resources available to support groups who face backlash against criminal justice reforms.
- 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 other actors who enthusiastically support reform is starting to grow but is not yet commensurate with the size and number of reforms we’re eventually hoping for.
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 (including an upcoming report on the topic by our senior advisor David Roodman). In short, we think it is very likely 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 support to specific potential changes that we expect to “balance out” in this way.
Each of our grants in this area is subject to a cost-effectiveness evaluation based on the following formula, which we apply whenever feasible (though not every grant is susceptible to this type of calculation):
Number of expected prison-years averted x $50,000 (our valuation of a year of incarceration averted) / 100 (we aim to achieve at least 100x return on investment, and ideally much more) > grant amount.
The same calculation is applied to the overall portfolio to allow us to set targets for the amount of decarceration we want to see in order to be satisfied that funds in this cause area have been well spent. For example, a $100 million investment in the portfolio over several years is expected to generate a 20,000 person reduction in the incarcerated population. It is challenging to conclusively trace a causal relationship between our investments and these reductions given the many variables impacting the incarceration rate, but where possible we will evaluate investments to assess our causal impact. This cost effectiveness assessment ensures that, while we hope our investments will have a transformative impact on the field and cause much larger effects, we stay grounded in a more modest target of impacting 20,000 jail and prison beds, and are satisfied that this compares well with our investments in other causes.
Our goals and strategy
The following outcomes are sub-goals that Chloe has identified as strategic paths to substantially reduced incarceration:
- Changed public and policymaker attitudes: There is much increased public awareness that mass incarceration is harmful and that better, rehabilitation-focused solutions are available to achieve safety. System actors and the law treat incarceration as a last, least-favored resort, in most instances replaced by alternative policy approaches that do as well or better at fostering individual and community safety. Where incarceration is considered necessary, the length of stay is considerably scaled back from current levels.
- Law enforcement accountability: Prosecutors and other law enforcement actors are effectively held accountable by and aligned with the communities most affected by both concentrated crime and over-incarceration, both in terms of facilitating safe communities and avoiding the expense and damage of unnecessary incarceration.
- Political power: Strong political constituencies exist that hold elected leaders accountable to limited use of incarceration and increased investment in alternatives, including constituencies led by formerly incarcerated people. This bolsters political will for addressing the legacy of structural racism (whether or not it is named as such) and investing in a more robust social and mental health services infrastructure that will take over the function of addressing many of the needs currently incorporated into the criminal justice system.
- Reduced racial disparities: Given the large racial disparities in incarceration rates,21 we believe it will be important to pay special attention to ensuring that reforms will benefit people of color, if overall efforts are to impact incarcerated people and affected communities proportionally.
To work towards these outcomes, Chloe is prioritizing the following areas in her grantmaking; these are areas of focus that we feel are important, where investments of resources can make a difference, and where there are funding gaps:
- Resourcing advocates to engage in state and local policy reform, focusing on the policies most likely to impact the number of people incarcerated while maintaining or improving individual and public safety.
- Investing in multi-directional pressure on prosecutors to focus more on serving communities broadly and less on convictions and harsh sentencing.
- Supporting the leadership development and growth of constituencies to advocate for criminal justice reform, including faith communities, formerly incarcerated people, and crime victims.
- Investing in projects demonstrating alternative approaches to dealing with harms currently resulting in incarceration, with the goal of showing political viability of these approaches.
(We plan to update this page in the future with lists of representative grants in each category; at present, not all of the grants that we would like to include are yet public.)
Overall, our 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 make their processes fairer, but believes those pieces are comparatively well-funded by other sources (though many organizations engaged in such work have some degree of room for more funding).
What we’re looking for in potential grantees
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 states with a large number of people incarcerated.
- 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).
- An understanding of the value of the leadership and knowledge of the people most impacted by mass incarceration, and incorporating that leadership into the grantee’s strategic design.
- The ability to identify highly effective groups working in a range of localities and to make strategic subgrants to those groups.
Types of policy reform we plan to prioritize
Since a significant portion of our grantmaking will go to support policy reform work, we list below some broad policy themes that we believe are promising in terms of reducing incarceration while maintaining or improving public safety:
- 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.22 Examples of reforms that could reduce sentence lengths include 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.23 A majority of local jail inmates have not been convicted of a crime.24 Potential reforms to lower the number of people held in local jails include reform of pretrial processes (including bail) and expanding diversion programs that act as alternatives to jailing.
- Reallocating public spending from incarceration to other areas, such as crime prevention, 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 Chloe wants to stay focused on making large and impactful investments in a limited number of channels, and in part due to a strategic assessment of which approaches are practically geared toward substantially reducing mass incarceration.
- Ending the death penalty
- Conditions of confinement25
- Police reform
- Reentry services
- Indigent defense
- Access to education for incarcerated people
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 public opinion.
- Funding or organizing system actors (e.g. police chiefs, sheriffs, prison officers, etc.) to adopt improvements: We know of at least one other funder who is doing this kind of work. That said, we are investing in organizing prosecutors as part of our multi-pronged prosecutor reform strategy.
- 1. The following people reviewed the 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, many of the ideas that Chloe has presented here draw on the work of the following people: Norris Henderson, Vanita Gupta, Kara Dansky, Carlos Saavedra, Paul Engler, Michelle Alexander, Austin Belali, Cietta Kiandoli, Matt Alsdorf, Daniel Espinoza, Dante Barry, Rashad Robinson, Caroline Isaacs, Marc Levin, Neil Barsky, Seema Gajwani, David Fathi, Seema Sadanandan, Robert Rooks, Pat Nolan, Ana Zamora, David Rogers, William Stuntz, and many others.
- 2. 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.
- 4. 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. Harris and Kearney 2014 reports an estimate of $80 billion a year spent on running state and federal corrections systems (pg. 2). 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 the above estimate account for the huge investment in constructing jails and prisons over the past several decades.
- 6. 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.”
- 7. For example, see Alexander 2012 and Drug Policy Alliance 2016.
- 8. For example, see Clear and Austin 2009.
- 9. For example, see Stuntz 2011.
- 10. In addition to the harm of incarceration itself, the indirect harms we see from incarceration 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 formerly incarcerated people impacted; health impacts on people who are unable to secure treatment resources due to the stigma of criminalization; lessened political power of the communities most impacted by incarceration; dependency of numerous local economies 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 up of incarceration has placed many millions of people in vulnerable positions (e.g. lack of housing, health care, drug treatment, etc.) that increase their chances of being drawn into the criminal justice system.
- 11. “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
- 12. See Clear 2008.
- 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. “At a time when most city and state agencies are struggling with budget constraints, Mr. Vance has secured a windfall of $808 million from criminal penalties against three international banks accused of violating United States sanctions — HSBC, Standard Chartered and BNP Paribas. It is a princely sum, nearly 10 times the office’s annual budget. Because by law it must be spent on criminal justice projects, it has transformed Mr. Vance into a kind of Santa Claus for the law-enforcement world, with a sack filled with new programs and equipment…
Mr. Vance has sunk large sums into equipment and capital improvements aimed at reducing crime in New York City. He earmarked $90 million to the Police Department to buy smartphones and tablets for officers, and $101 million to the city’s housing projects to improve lighting and upgrade locks and security cameras. He has also given money to prosecutors in other boroughs for cybercrime labs, has paid for training and equipment for the city medical examiner’s office and has sent millions to state agencies for expenses like license plate readers on the Thruway and a photographic database of convicted felons. About $459 million has been allocated so far, and $69.5 million disbursed.”
- 17. 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.
- 18. 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.
- 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. 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.
- 21. For incarceration rates by race, see Bureau of Justice Statistics, Prisoners in 2014, table 10, pg. 15.
- 22. We plan to write more in the future about our take on the evidence around how incarceration affects crime rates. In the meantime, the following quote from National Research Council 2014 (pg. 5) provides an intuition for why shortening sentences could be worthwhile in some cases:
“The incremental deterrent effect of increases in lengthy prison sentences is modest at best. Because recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation.”
- 23. 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
- 24. 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
- 25. 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.