Criminal Justice Reform: Today's Defining Civil Rights Issue
By Anthony Romero
In a recent email to the Ford Foundation community, its president, Darren Walker, recounted a visit with participants in the Bard Prison Initiative. The success of this Ford-supported program at Bard College in providing educational opportunities to incarcerated men reminded Walker of the strength of the human spirit even in the face of inequality and injustice, and of the power of philanthropy to improve human lives.
Ford’s earliest support of criminal justice reform was largely focused on abolishing the death penalty through support to leading civil rights organizations such as the NAACP Legal Defense and Educational Fund and the American Civil Liberties Union. Subsequent grants to organizations like the Vera Institute for Justice, headed at the time by Chris Stone—now the president of the Open Society Foundations—and the Police Foundation focused on the issues of police accountability and promulgation of community policing models.
The Foundation ultimately created a dedicated portfolio of grant-making focused on criminal justice reform that added critical resources to what would become the defining civil rights issue of our time.
America is addicted to mass incarceration. In 1980, there were 500,000 people behind bars in this country. Today there are 2.2 million. Millions more formerly incarcerated Americans have been deprived of their ability to work, learn and participate in our democracy. The United States is the world’s largest jailer, a disgraceful—and exceedingly expensive—distinction. Every year, billions of tax dollars desperately needed in other areas are sucked into the prison-industrial complex.
Driven by the “War on Drugs” and “tough on crime” polices of the 1980s and 1990s, our prisons are glutted with nonviolent offenders, the mentally ill, the elderly, drug addicts and children charged as adults. Meanwhile, thousands are in jail for being too poor to post bail, to pay fines for traffic tickets and other infractions, or to pay public and private debts, thanks to a resurgence of debtors’ prisons fueled by lucrative government contracts with debt collection agencies and private probation companies.
States and the federal government combined spend an estimated $80 billion a year on corrections, the vast majority of that cost borne by the states. And because of discriminatory laws and enforcement, combined with other stark economic, educational and public-health inequities between races, people of color are vastly overrepresented in the criminal justice system, breeding severe political, economic and social consequences for generations. In fact, more blacks are under correctional control today than were enslaved in 1850, rendering mass incarceration a modern American apartheid.
Thanks to decades of patient funding from the Ford Foundation, along with the Open Society Foundations, Atlantic Philanthropies and smaller donors like the Public Welfare and Rosenberg foundations and others, we are at a moment when transformational change on criminal justice reform is within reach.
There has never been a better time to address criminal justice reform, with both conservatives and liberals enthusiastically joining the chorus for change. In March, the Bipartisan Summit for Criminal Justice Reform—sponsored in part by the Ford Foundation and the conservative Koch Industries—brought together such disparate voices as New Jersey Democratic Senator Cory Booker and Republican presidential candidate Rand Paul, who last year partnered to introduce legislation that would steer child offenders from the criminal justice system.
Perhaps most important, the American public recognizes the importance of reform. In June, the ACLU commissioned a nationwide poll of registered voters:
• Overall, 69 percent of voters said it is important for the country to reduce its prison population, including 81 percent of Democrats, 71 percent of Independents and 54 percent of Republicans.
• Voters believed by a two-to-one margin that reducing the prison population will make communities safer by facilitating more investments in crime prevention and rehabilitation strategies.
• 87 percent of respondents agreed that people struggling with drug addiction and mental illness should receive treatment instead of incarceration.
Our research suggests that residents of red states are ready for reform and residents of blue states are overwhelmingly in favor of it. California is one example, where in 2014 Proposition 47, which reclassified low-level, nonviolent crimes such as simple drug possession and petty theft from felonies to misdemeanors, passed with 60 percent voting “yes”.
Unlike other civil rights struggles, where the federal government and the federal courts provided the avenues for systemic reform, the battle grounds for criminal justice reform are at the state and local levels, where the vast majority of individuals are arrested, sentenced and incarcerated.
We must remove or reduce criminal penalties for low-level offenses. In fact, more than a quarter of the incarcerated population is locked up for nonviolent drug offenses. Because our criminal justice system is a tangled web of overly punitive policies—mandatory minimum sentencing guidelines, “three strikes” and habitual offender rules, and “truth in sentencing” laws—that ties the hands of judges and parole boards, too many people are needlessly incarcerated, while others languish behind bars for far too long.
Abusive police practices, racial profiling and selective enforcement, and unfettered prosecutorial discretion also conspire to strip people of the equal protection of the laws and of due process rights, and also create racial discrimination at all points of the criminal justice system: police contact, arrest, prosecution, conviction and sentencing.
This insidious effect has been described by Michelle Alexander, a former ACLU staff member and Ford’s new scholar in residence, as “the new Jim Crow”. She accurately diagnoses the criminal justice system as one that continues to oppress communities of color in the 21st century, particularly young African American men, to the same extent that Jim Crow laws oppressed minorities in the 20th century.
As much as the United States’ criminal justice system is a harsh outlier in the world, our reliance on solitary confinement is an even harsher outlier. Tens of thousands of Americans are alone in cells for 22 to 24 hours a day with little or no human interaction, environmental stimulation or constructive activity. The length of confinement varies, but it can last for years or decades. Between 30 and 50 percent of those held in solitary have mental illness, despite the general consensus among researchers that isolation is especially harmful to a person’s mental health. The brutal results have included unnecessary pain and suffering, worsening illness, horrific incidents of self-harm and self-mutilation, and suicide.
Another important target of reform efforts must be the troubling rise of the private prison industry. From 1990 to 2009, the number of prisoners in private facilities grew by 1,600 percent, and in 2010 for-profit companies held 6 percent of state prisoners, 16 percent of federal prisoners, and nearly half of all immigrants detained by the federal government, and the top two service providers generated more than $3 billion in revenue.
Banks and institutional investors have poured capital into the industry while its operators have hired brigades of lobbyists and made campaign contributions to ensure growth potential, all largely without the public’s notice.
Private prison companies claim they provide better conditions and cost savings to federal and state governments. In fact, these companies’ main focus is making profits, not correctional rehabilitation, and they are often cited for warehousing prisoners in deplorable conditions overseen by underpaid, under-qualified employees.
Compounding the challenge that many different levers of change must be pulled in local jurisdictions around the country is the conundrum of how to help the formerly incarcerated transition to life outside of prison. Reintegration strategies and interventions, including drug and alcohol addiction programs, job training and placement, assistance with housing, and treatment for the mentally ill, will need to be greatly enhanced if we are to offer meaningful opportunities of redemption to the formerly incarcerated.
True reintegration will require wholesale reform in many areas. In some states, convicted felons are permanently barred from voting. A young person with a single nonviolent felony drug conviction is forever ineligible for federal student aid. Anyone with a felony conviction is also barred forever from living in federally-subsidized housing. Put out on the street with no money and no prospects, they are often even barred from living with family while they get on their feet. And it can be nearly impossible to find a job when employers are allowed to make former felons “check the box”, disqualifying them in the eyes of many before they’ve even read the rest of the application.
Tackling America’s mass incarceration problem will require patience and sustained funding for advocacy at the state level. Grant dollars have to reach local activists who are best positioned to make the systemic reforms in state legislatures. Fortunately, the growing cadre of funders working in this space alongside Ford appears to understand the need for sustained support that targets state-level reform in a coordinated national strategy.
The struggle for criminal justice reform is ultimately about values. Not every incarcerated person can or should go free. Not every life is redeemable. But we are not a people, nor should we be a society, who automatically condemn, brutally and forever, individuals who still have something to contribute with their lives.