Philanthropy and Criminal Justice Programs Time for a Return?

Today, there are few philanthropic organizations that fund criminal justice reform in the United States frankly and directly. Some programs on children fund work on violence prevention, some health programs fund work on drug treatment, and some that focus on employment fund work with ex-offenders—but in each case criminal justice comes into the picture tangentially or obliquely. The Open Society Institute is an exception, with program officers specializing in criminal justice reform as part of its Center for Crime, Communities, and Culture, as well as its Gideon Project.

Yet concern with crime, policing, and criminal justice is strong among the usual constituents of philanthropy: universities, advocacy organizations, community groups, and public policy institutes. Criminal justice is reportedly the most popular undergraduate major in the United States, and graduate programs are proliferating. Crime and justice remain among the most frequent topics covered by journalists and among the most popular topics among screenwriters, songwriters, and network executives. Despite state and local control over most of the justice system, the federal government is preoccupied with the subject, moving unprecedented billions of dollars in federal aid to the states.

Moreover, the broad, popular concern with crime, policing, and criminal justice is intimately connected with issues of race. Questions on community policing, racial profiling, and the death penalty arose regularly in Presidential debates during the last three national elections, and in each case the connection to concerns about race relations was clear.

Does it matter that philanthropy is relatively absent from this field? What explains its absence? And could philanthropy now engage with these issues in ways that put racial justice front and center?

The Challenge to Philanthropy

The challenge to philanthropy is to capture, in a conceptual framework, the processes that build legitimacy. How can legal actors and the law earn credibility? What can foundations do to carry out these ideas? In Boston, the complex relationship between the Black clergy’s Ten Point Coalition, the city’s legal institutions, and the research community has generated support for some of the heavy-handed tactics used by police and probation agencies to stop an epidemic of youth gun homicide among the city’s gangs. Operation Cease Fire was a research-driven effort to identify not only where the problems exist but who the bad actors were. What differentiated Cease Fire from other efforts across the country was the reciprocity and coordination between the clergy, legal institutions and actors, and researchers. The moral authority of the community was expressed through voices of the clergy. But the clergy were also tough, if not tougher than the police. They basically said, “We love you. We want you to survive. We want you to do well. But if you step out of line we’re going to throw you in jail faster than you can blink.”

Coming from a police officer, that message would have no moral authority. But coming from the clergy, it did.

New York City has had quite the opposite experience. Not only was its strategy to reduce crime racially charged and racially disproportionate, not only did it result in fatalities, but it cynically compromised the idea of a research-driven strategy. The police used detailed data to pinpoint where the bad locations and dangerous places were; what times of day were most dangerous; and even, to some extent, who the offenders were. But they never shared that information with the affected communities. They never engaged in the process of building a strategy with citizens in the community that could morally legitimize what their actions were. As a result, the police minimized community input. By not sharing the research base, they lost the chance to launch an interactive democratic process that could have validated their efforts with citizens who would be affected most by their policies.

Chicago has had two contrasting experiences with citizen involvement in policing youth violence problems. The controversial example was the gang loitering ordinance that was passed in 1992 and was in effect until a federal court order ended it in late 1999. The ordinance provided law enforcement with new tools to aggressively disrupt street-level gang organizations. Citing support and approval from segments of the community to use strong measures against street gangs, Chicago police implemented the ordinance. They operated in specific neighborhoods by preemptively interdicting groups of street-gang members meeting on street corners. The policy—not unlike the aggressive stop-and-frisk policies implemented by the police in New York—resulted in more than 40,000 arrests of young African-American and Latino males for loitering and minor offenses. Missing from that process was a dynamic exchange among citizens, community, and police that would communicate and reinforce moral authority, popular consent, and legitimacy within the community.

Philanthropy can advance the process of building trust between citizens and legal actors, with important effects on democracy for communities that often are left behind or even hurt by the institutions of criminal law.

The Chicago Community Policing Program offered a different experience of citizen involvement in criminal law and justice. The program was built on a process in which data about crime and policing were widely shared with citizen groups to help them plan strategies to reduce crime. Despite some unevenness in implementation across the police districts, the interaction of citizens and police allows everyone to agree on what the problems are and what kinds of actions might be appropriate to solve them.

Foundations can look to programs like this one in Chicago and Cease Fire in Boston for lessons on how strong citizen input can help solve recurring crimes. Legitimacy accrues when citizens interact with legal actors on research or data-driven facts that everyone can agree on. But it is more than the introduction of objective knowledge that can transform a process into new forms of democratic deliberation. The way the facts are compiled; the degree of citizen participation in data collection and analysis; what questions are asked; what data elements are collected; who sets the research agenda; and who owns and controls the analysis of the data are all questions that need to be answered in order to build trust.

Designing structures that communicate the reality of legitimacy concerns as regards the criminal justice system and that form new methods of interaction between citizens and legal actors is a potentially important means of building trust. These dynamic exchanges can rearrange institutional relationships to develop new types of deliberative democratic forums. Philanthropy can advance these processes, with important effects on democracy for communities that are often left behind or even hurt by the institutions of criminal law.

Philanthropy’s Absence and Presence

Today, there are few philanthropic organizations that fund criminal justice reform in the United States frankly and directly. Some programs on children fund work on violence prevention, some health programs fund work on drug treatment, and some that focus on employment fund work with ex-offenders—but in each case criminal justice comes into the picture tangentially or obliquely. The Open Society Institute is an exception, with program officers specializing in criminal justice reform as part of its Center for Crime, Communities, and Culture, as well as its Gideon Project.

Yet concern with crime, policing, and criminal justice is strong among the usual constituents of philanthropy: universities, advocacy organizations, community groups, and public policy institutes. Criminal justice is reportedly the most popular undergraduate major in the United States, and graduate programs are proliferating. Crime and justice remain among the most frequent topics covered by journalists and among the most popular topics among screenwriters, songwriters, and network executives. Despite state and local control over most of the justice system, the federal government is preoccupied with the subject, moving unprecedented billions of dollars in federal aid to the states.

Moreover, the broad, popular concern with crime, policing, and criminal justice is intimately connected with issues of race. Questions on community policing, racial profiling, and the death penalty arose regularly in presidential debates during the last three national elections, and in each case the connection to concerns about race relations was clear.

Does it matter that philanthropy is relatively absent from this field? What explains its absence? And could philanthropy now engage with these issues in ways that put racial justice front and center?

Philanthropy’s Absence and Presence

Nowhere is the absence of philanthropy from the field of criminal justice more evident than in the local communities where residents struggle with issues of crime and justice. Consider, for example, what happened in 1994 when the federal government announced its intention to invest $100 million in each of a series of “empowerment zones” across the United States. The program encouraged communities to draft proposals for how they would use these funds, requiring each community to engage in a participatory planning process. In New York City, more than 300 residents of Harlem and the South Bronx were enlisted onto more than a dozen committees dealing with topics such as senior citizens, small business development, transportation, housing, job training, child care, and public safety. On each committee, representatives from state and city government agencies worked with local residents and merchants to develop specific proposals.

Visiting the committees on child care, education, and housing, it was clear immediately that the people in the room—the government and community representatives—had worked together under many different auspices for years. These committees might have been hastily assembled, but the individuals in the room were old collaborators. This kind of cross-sector colleagueship is a hallmark of philanthropic planning processes, in which groups of people interested in an issue from different organizational perspectives are gathered for two or three days of facilitated discussion. As I thought at the time, these community activists and public officials had probably been schooled in collaboration—directly or indirectly—by America’s foundations.

The withdrawal of direct philanthropic activity relating to the issue of criminal justice has left communities without the habits of collaboration and the technical sophistication they need to work effectively on these issues.

Not so in the public safety committee. Entering that room for the first time, I saw the police representatives—all white—along one side of the room, while the community representatives—none of them white—were talking with each other in another area. When the meeting began, the conversation consisted of questions and answers, short speeches, and occasional challenges. There was no apparent shared history, experience, or even vocabulary. There was no brainstorming or collaborative planning. There was, however, much mutual suspicion.

After working with these committees for a few weeks, I described the contrast between the public safety and the other committees to a friend who worked in a major foundation. She was engaged in similar empowerment zone planning processes in other cities, and she reported that the same contrast was evident in each of them. The people in Harlem and other communities eager to work on issues of safety and justice were simply unable to talk in any but the most formal ways with their public servants. That was one consequence of the absence of philanthropy from the field.

The other consequence noticeable in the planning was the lack of criminal-justice expertise available to the other committees. As the planning progressed, it turned out that the discussion in the housing committee soon turned to neighborhood safety; in the senior citizen group, to crime prevention; in the employment committee, to the need to employ young men returning home from jail. Yet the experts and officials participating in those committees had little knowledge of crime patterns, policing, or corrections programs. Government funding had nurtured plenty of expertise on these topics for criminal-justice officials, but it would have taken philanthropic support to develop equivalent expertise in these communities.

It should be no surprise that issues of criminal justice would arise in a discussion of almost any topic within these communities of color. There are probably now about twenty-five thousand people, almost all persons of color, returning to New York City every year from state prisons: dozens every day of the year. Yet there is almost no planning for this population within their communities or in the agencies of government on which they will depend. Four times that number, about a hundred thousand people, return every year from the city jails on Rikers Island. Three hundred thousand individuals are arrested every year in New York City: again, mostly persons of color. And that does not include the thousands stopped and frisked by the police every year, only to be released without an arrest. You do not need to go to a formal meeting to sense the deep impact that these stops, arrests, and incarcerations make on these communities. In New York, you only need to listen to the conversations on the streets and subways, at church, or in the stores. Visiting friends and family in jail, preparing for their return, accompanying them to court is part of the daily rhythm of life.

Foundations and Criminal Justice

Philanthropic institutions have not always avoided criminal justice. From the late 1950s until the mid-1980s, there were many major philanthropic efforts at work directly on issues of criminal justice: on prison reform, policing reform, juvenile justice, and the like. The Ford Foundation’s work in this area is probably the best documented, bridging concerns about the policing of the civil rights movement in the early 1960s and the rise of crime later in that decade. Ford provided major support for institutions such as the Southern Police Institute at the University of Louisville, hoping to increase the professionalism of police departments, especially in the southern United States. It later created the Police Foundation and assisted in the formation of the Police Executive Research Forum and the National Organization of Black Law Enforcement Executives. The program at Ford also included support for government officials, universities, and a range of independent nonprofit organizations. The subjects of many of those grants—“the challenge of racial tension to law enforcement,” “the role of police in race relations,” “the function of the police in the urban Negro community,” “relations between police and minority urban residents”—leave no doubt that issues of race were prominent among the concerns that brought the Ford Foundation, and others, into the field.

By many measures, this philanthropic investment in criminal justice reform succeeded. Congress had created the Law Enforcement Assistance Administration by the 1970s to provide much more substantial federal funding for many of the activities that had begun with philanthropic support. By the 1980s, cities across the United States were adopting recruitment, training, and tactics developed with philanthropic support, and locally funded experiments in community policing were beginning to attract attention. Beyond policing, the federal government took the lead in juvenile justice reform and crime prevention. Even jail and prison reform seemed to be moving forward in some states without a dependence on philanthropy. When the Ford Foundation announced in the middle of the 1980s that it would be ending its program in criminal justice, and as other foundations gradually followed Ford out of the field, much had been achieved.

Yet, just as issues of race had helped bring philanthropy into criminal justice, issues of race helped it depart. The increasing proportion of United States prisons filled with persons of color might have been seen as the product of growing racial bias; instead it was increasingly seen as a product of high rates of crime within these communities. As harsh penalties for crime became as popular among black legislators as among their white colleagues, philanthropic interest in the justice system could appear to be missing the real issues: poverty, poor education, and discrimination in the labor markets. Concern with issues of race was taking foundations in other directions. The problems in the criminal justice system seemed, more and more, to be problems of crime.

Events of the last few years, however, make it plain that the problems of police-community relations, bias in the enforcement of law, and overincarceration of people of color were not solved by the philanthropic investments of the ’60s, ’70s, and ’80s. They persist, as troubling as ever. The question remaining is whether or not they could be addressed effectively by more focused philanthropic attention.

Politics is not the problem. Although some might worry that foundations risk criticism for taking up the cause of criminal justice reform, recent events make clear that issues of racism in law enforcement are well within the mainstream political discourse of the United States. Earlier this year, for example, when President Bush and Attorney General Ashcroft first met with the Congressional Black Caucus, they emerged with the announcement that the administration had committed itself to ending racial profiling. Not just studying it, or even prohibiting it. Ending it. Even on a subject as politically divisive as the death penalty, the U.S. Department of Justice is making new investments in studying racial disparity in its application.

There is no comparable philanthropic investment or major foundation program on either of these subjects. Is philanthropy needed here? Of course there is need; but there is always more need for assistance than there is philanthropy available. Need alone is not enough. Now, however, there is also an opportunity to make a difference.

Ending Racial Profiling?

Ever since the promise of equal justice was extended to persons of color in the United States, there have been complaints of racial discrimination in the criminal justice system. But today we have a phrase for it—racial profiling—and the appeal of the phrase itself makes the phenomenon more resonant

The phrase derives from the inclusion of race in the “profiles” of drug couriers that law enforcement agencies used until recently to spot suspects at airports. These profiles were permitted by the courts, but lawyers continued to complain about the inclusion of race among the factors that allowed police to turn an ordinary civilian into a criminal suspect. In the mid-1990s, this legal concern merged with popular anger over the perception that police officers patrolling highways were stopping black motorists because of their race: a perception captured in the sarcastic explanation that police were stopping people for “driving while black.” At the same time, many urban police departments were increasing their use of stop-and-frisk tactics, involving many more innocent people—most of them individuals of color—in potentially dangerous encounters with police. These three trends—legal criticism of drug courier profiles, complaints about stops for “driving while black,” and concern about growing use of stop-and-frisk—combined to create a broad constituency willing to condemn all of this as racial profiling. More recently, as the term has become more popular, it has been further expanded to encompass the entire array of demeaning and inaccurate racial stereotypes employed throughout law enforcement and criminal justice.

In the last two years, the debates about racial profiling have shifted. The question today is no longer whether police should monitor the race of those they stop at airports, on highways, or on the streets: monitoring of those stops is becoming commonplace. Today the questions concern how to analyze the results of this monitoring and how to end racial discrimination in law enforcement without compromising the effectiveness of law enforcement.

A philanthropic initiative to end racial profiling would have plenty of potential grantees. A wide array of scholars, police executives, elected officials, civil rights leaders, and community activists are addressing these questions with passion and creativity, but with little institutional structure, connection to each other, or financial support. One approach is to quantify racial profiling, developing data about the expected rates of stops and comparing them to the actual practice of police agencies. This body of work raises a complex set of questions about how to measure the expected rates of stops. For example, if one counts speeders or extreme speeders on highways to describe the group that should be stopped by unbiased policing, what does that mean about how to measure the expected pattern of pedestrian stops in an urban neighborhood?

Just as issues of race had helped to bring philanthropy into criminal justice, issues of race helped it depart.

Another approach focuses on monitoring individual officers: looking for differences in the stops made by the officers who police the same highways or neighborhoods. A third approach is to focus on what happens during a police stop: Is the decision to search, handcuff, or issue a summons to the suspect different according to race? A fourth line of work concerns the success of the stops, developing evidence that race-based stops are ineffective at detecting or deterring crime. A fifth and final line of work concerns the way that the police treat anyone they stop, emphasizing the importance of respectful treatment even of people initially suspected of criminal conduct.

In sum, the criminal justice system remains the source of great injustice and real social problems for communities of color. These injustices and social problems infuse daily life in heavily policed communities. The withdrawal of direct philanthropic activity concerning the issue, despite the persistence of some indirect grant making, has left communities without the habits of collaboration and the technical sophistication that they need to work effectively on these issues. While there will always be political risks in taking up controversial causes, it appears to be politically safe even for the President of the United States to talk about ending racial profiling in law enforcement.

In short, the field seems ripe for philanthropic investment that can make a real difference. The benefits may be particularly great if foundations could approach the issue of racial profiling and racial discrimination in the criminal justice system more generally, as one fundamentally about dignity and respect for individuals and communities of color. Rather than begin with a focus on crime or the legal questions surrounding police stops, philanthropists can approach these issues from the perspective that justice is as much about respect as it is about legal fairness. From this perspective, public safety, fairness, equity, and justice can be advanced not only through legal or programmatic solutions, but through the development of new social and government practices that promote respect for, and the dignity of, all people. Perhaps, in working in this direction, we may find some clues about how foundations can engage more directly in issues of race in other areas as well.