Six years ago, George Soros’s Open Society Foundations made a $50 million grant to the American Civil Liberties Union to support what the ACLU described as “the most ambitious effort to end mass incarceration in American history.” Anthony Romero, the ACLU’s executive director, boldly set a goal for the campaign: To cut the number of adults held in America’s prisons and jails, then estimated at 2.2 million, in half by 2020.
A cascade of philanthropic dollars followed. The John D. and Catherine T. MacArthur Foundation made overhauling the criminal-justice system a “big bet” in 2015, launching a five-year, $75 million effort, which has since grown much bigger, to reduce America’s use of jails. The Public Welfare Foundation and the Ford Foundation created a new national organization, the Alliance for Safety and Justice, to develop state-by-state advocacy campaigns to push for alternatives to incarceration. Other philanthropies with billions of dollars in assets, including Arnold Ventures, the Chan Zuckerberg Initiative, and the Open Philanthropy Project, have made reducing mass incarceration a priority.
The cause has particular appeal to younger, West Coast donors who have made their fortunes in technology.
They all point to the fact that the United States incarcerates more of its citizens than any other nation: Less than 5 percent of the world’s population lives in the United States, but this country holds about 20 percent of the world’s prison population.
“We have gone way off track,” says Jeremy Travis, executive vice president for criminal justice at Arnold Ventures, the philanthropy run by John and Laura Arnold. “We have too many people in prisons and jails. Philanthropy can make an enormous difference.”
But how much of a difference has philanthropy made? Judged by the number of people behind bars, not much. Some states have substantially reduced their prison populations, but across the United States, the number of people held in prisons and jails has declined only slightly. The Sentencing Project, a research and advocacy group, says that if the states and the federal government maintain the current pace of decarceration, it will take until 2091 to cut the U.S. prison population in half — the 2020 target set by the ACLU.
“Mass incarceration is alive and well,” says Timothy Silard, a former prosecutor and president of the Rosenberg Foundation, a San Francisco grant maker that was among the first to focus on criminal justice. “There is much, much work to be done.”
‘Muscular’ Advocacy
This doesn’t mean that the movement to curb mass incarceration has failed. To the contrary, philanthropy has aggressively tackled the problem. Foundations have invested in scholars and journalists to better understand it. They have generously financed new nonprofits and funded allies inside governments. They also have backed federal, state, and local efforts to make just about every element of the justice system less punitive, seeking to influence the conduct of police officers and prosecutors, to decriminalize minor offenses like marijuana possession, to end mandatory minimum sentences, to improve conditions inside prisons and jails, and to help former convicts — the preferred term now is “returning citizens” — re-enter society.
Foundations have helped build a vibrant, well-financed, bipartisan movement to curb mass incarceration. Says Silard: “The infrastructure of criminal-justice advocacy has become much more muscular.”
Grant makers can also take some credit for the seismic shift in the politics of criminal justice. Tough-on-crime rhetoric has mostly given way to an emerging consensus that the U.S. criminal-justice system is costly, ineffective, and unfair. Conservative Republicans and liberal Democrats alike want to see fewer people behind bars, albeit not always for the same reasons.
The newly invigorated movement is delivering results. In 2018, Congress passed the First Step Act, which has been called the most significant criminal-justice bill in a decade. It was backed by the Soros and Koch brothers’ philanthropies, the ACLU and the American Conservative Union, and, importantly, Jared Kushner, President Trump’s son-in-law and senior White House adviser. For Kushner, the issue was personal: His father, Charles Kushner, served 14 months in federal prison after pleading guilty to witness tampering, tax evasion, and making illegal campaign contributions.
What Philanthropy Has Accomplished
In this series, the Chronicle takes a deep dive into the results of big philanthropic efforts to discover what has worked, what has failed, and what donors can learn. Read more:
“Coalitions of opposing interests can be especially successful in policy making,” says Laura Arnold, co-chair of Arnold Ventures, which includes the Action Now Initiative, a 501(c)(4) grant maker that supports advocacy and lobbying. A hallmark of philanthropy’s work on criminal justice is the willingness of supporters to engage in the messy business of politics.
State and local governments, which confine the vast majority of people in jail or prison, have enacted more than 200 laws aimed at reducing mass incarceration. “We’ve seen some incredible reforms,” says Udi Ofer, director of the ACLU’s Campaign for Smart Justice. Louisiana and Oklahoma, the two states with the highest incarceration rates, have enacted sweeping changes, strengthening alternatives to prison and reducing sentences, among other things.
If grant makers and nonprofits build on this foundation, the campaign to end mass incarceration could become a landmark success story of contemporary philanthropy. At the very least, it is evidence, despite the persistent critiques of billionaire giving, that some of the nation’s best-known billionaires are pouring resources into work that aims to improve the lives of the most vulnerable among us — the poor and people of color, who are more likely to wind up behind bars.
Robin Steinberg, founder and CEO of the Bail Project, a national effort to transform pretrial justice, puts it this way: “I think our nation is finally reaching a moment of reckoning with its legacy of racial violence, economic disenfranchisement, and mass incarceration.”
The approaches foundations have taken on criminal justice are remarkably diverse and represent a playbook that could be adapted to dealing with other vexing social issues that command philanthropic attention. Grant makers are:
Shaping public opinion
Foundation-funded scholarship and journalism have helped transform the debate about mass incarceration. “The Growth of Incarceration in the United States,” a comprehensive 2014 report from the National Academy of Sciences, was funded in part by MacArthur. It argued that “the United States has gone far past the point where the numbers of people in prison can be justified by social benefits and has reached a level where these high rates of incarceration themselves constitute a source of injustice and social harm.”
The Charles Koch Foundation funds academic centers at major universities, including Duke, Ohio State, and the University of Pennsylvania. A Soros Justice Fellowship enabled civil-rights lawyer and legal scholar Michelle Alexander to write The New Jim Crow, the book that persuasively framed mass incarceration as a civil-rights issue. “The impact was far more than we had anticipated,” says Leonard Noisette, director of the justice team at Open Society.
As it happens, reading The New Jim Crow helped persuade Neil Barsky, a reporter turned hedge-fund manager, to start the Marshall Project, a nonprofit news site covering criminal justice whose major supporters include Arnold Ventures, Ford, MacArthur, and Open Society. MacArthur produces a podcast called 70 Million about mass incarceration and supports journalism about criminal justice that appears in The Atlantic, while the Justice Collaborative, a new nonprofit funded by Open Philanthropy, publishes the Appeal, a website and podcast covering criminal justice. Art for Justice invites artists to portray the injustices of the criminal-justice system and to humanize the people enmeshed in it.
Building a political movement
Unlike most foundations, which are limited to giving to 501(c)(3) nonprofits, Arnold Ventures, Chan Zuckerberg, Open Philanthropy, and Open Society are organized as limited-liability companies, giving them latitude to engage in politics. They support organizations that do advocacy, lobbying, and political advertising and participate in ballot campaigns. “Politics got us into this mess,” says Udi Ofer of the ACLU. “Politics needs to get us out.”
This requires a decentralized approach. The American criminal-justice system holds people in 1,719 state prisons, 109 federal prisons, 1,772 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails, according to the Prison Policy Initiative. This sprawl has led grant makers to create and finance new nonprofits, including the Alliance for Safety and Justice, the Bail Project, and the Justice Collaborative, to work with state and local nonprofits and government agencies. “We can’t slog through every town, although we’re going to slog to a lot of towns,” says Chloe Cockburn, who leads the criminal-justice work at Open Philanthropy.
Curbing mass incarceration in a deep-red state like Oklahoma required a left-right coalition that includes the ACLU, FWD.us, a progressive advocacy group funded by Chan Zuckerberg, and Right on Crime, which has been funded by Charles Koch Foundation. The pitch to conservatives goes beyond fiscal responsibility to include such goals as keeping families together, getting people who are now incarcerated back into the work force, and the idea of redemption, according to Marc Levin of Right on Crime. “Come for the savings and stay for the salvation,” Levin quips. The Prison Fellowship, a Christian nonprofit founded by former Nixon aide Charles Colson, says that “even the most broken people and situations can be made whole again.”
Advising government officials
Once political leaders in a locality decide to rethink their approach, the MacArthur Foundation stands ready to help. In 2015, MacArthur embarked on a long-term effort to help local governments reduce the number of people held in jails; it invited local officials to apply for grants to develop, research, test, and execute ideas. Today, the program, called the Safety and Justice Challenge, provides 52 cities and counties across 32 states with funding and advice. They range in size from Los Angeles County, with about 20,000 jail beds, to Campbell County, Ky., with just 140 beds, but collectively they account for about 16 percent of the U.S. jail population.
“We didn’t have a blueprint or a model for how a jurisdiction should go about reducing their jail population,” says Laurie Garduque, who directs MacArthur’s criminal-justice work. Each jurisdiction takes its own approach, and the group gets together twice a year to share ideas.
MacArthur recently published an evaluation of the first two years of the Safety and Justice Challenge, which found that “systems reform is moving slower than planned thus far.” After spending $117 million from 2015 to 2017, it found that “some jurisdictions have made serious reductions in jail populations, whereas others are struggling to fully implement their reforms, and other jurisdictions have seen their jail populations grow.” MacArthur has adapted, adding new partners and encouraging new strategies at sites that fell short of their goals.
Agreeing on broad goals and strategies — but not always on tactics
The big foundations have occasionally worked closely together to engage in what is sometimes disparaged as top-down philanthropy. In 2011, for example, several grant makers created an organization called Californians for Safety and Justice, which grew into the national Alliance for Safety and Justice.
“We needed a hub and a nerve center for policy and advocacy,” says the Rosenberg Foundation’s Silard. A loose coalition called the Criminal Justice Funders Network, led by Open Society, Open Philanthropy, and Ford, brings about 20 grant makers together to collaborate. “As funders, we are increasingly working together and aligning our strategies in ways we never did before,” says Helena Huang, project director of Ford’s Art for Justice fund.
Of course, disagreements arise.
The most notable revolves around the issue of bail. In one of the most ambitious and controversial criminal-justice projects, Arnold Ventures and its partners have spent more than $50 million to develop, distribute, and promote a software tool, called the Public Safety Assessment, which is designed to harness big data to help judges decide whether someone accused but not convicted of a crime should be freed before trial or held in jail. It’s been adopted by more than 40 jurisdictions, including Arizona, Kentucky, New Jersey, and Utah.
Arnold Ventures says that, when used properly, its algorithm can reduce pretrial detention and alleviate racial disparities; critics are skeptical, to say the least.
An equally ambitious effort, funded by the Audacious Project and Blue Meridian is the nonprofit Bail Project, which seeks to eliminate bail altogether. “We do not believe that government should be able to deny your liberty and remove you from your family and community based upon a charge,” says the Bail Project’s Steinberg.
In the meantime, the Bail Project has raised money for a national revolving fund to pay bail for low-income people whom judges have deemed eligible for pretrial release.
Long Road Ahead
These activities, taken together, represent just a fraction of the work that foundations are funding to curb mass incarceration; it would take a book or two to catalog all their work.
Chan Zuckerberg, a relative newcomer to the cause, supports a nonprofit called Fair and Just Prosecution that aims to bring transparency and accountability to the work of prosecutors who have tremendous discretion over criminal cases. It is also one of a number of grant makers to get behind a campaign called Clean Slate that has pushed for laws to automatically erase the criminal records of released inmates who remain crime-free for a time. It also takes pride in supporting groups led by formerly incarcerated people.
“We haven’t really grappled with what to do with people charged with serious offenses, violent offenses,” says MacArthur’s Garduque.
Some organizations support “second look” legislation that permits incarcerated people serving long sentences, including life sentences, to petition judges to reconsider; inmates over 55 make up a growing share of the prison population. “If there’s one thing we know about involvement in crime, it’s that people age out of the high-crime years,” says Marc Mauer, executive director of the Sentencing Project, which launched a campaign to end life sentences in 2018.
A more radical approach would keep some who commit serious crimes out of prison. The idea, known as restorative justice, brings together those who have caused harm, crime survivors, and community representatives to engage in dialogue and healing, with the goal of agreeing on a plan to make amends. At Impact Justice, a nonprofit based in Oakland, sujatha baliga leads efforts to explore ways that restorative justice can address crimes committed by young people, as well as intimate partner violence.
“Restorative justice is a paradigm shift in the way we think about crime and harm and wrongdoing,” says baliga. “This is a real shift away from punitiveness towards a justice that involves reparation, accountability, and healing.” A survivor of child sexual abuse, baliga’s work has attracted support from Open Society, the Novo Foundation, Open Philanthropy, and MacArthur, which gave her a “genius” grant in 2019.
The ACLU, meanwhile, has launched a new campaign, again with support from Open Society: It’s a 50-state blueprint that, among other things, calls for an end to mandatory minimum sentences and urges states to develop alternatives to prison for people with drug, alcohol, or mental-health problems.
The ACLU has once again set a goal for the campaign: to cut the number of people behind bars by half. It’s the same goal that the group set back in 2014. No one has said that fixing America’s criminal-justice system would be easy.
