Arnold Ventures (formerly the Laura and John Arnold Foundation) has been a leading supporter of criminal justice reform since 2011. Under the leadership of James Cadogan, vice president of criminal justice, the organization recently launched the National Partnership for Pretrial Justice, a community of practice involving more than two dozen Arnold Ventures grantees working to eliminate unnecessary and unjust detention practices, with new investments totaling $39 million.
Cadogan joined the organization after serving as the inaugural director of the Thurgood Marshall Institute at the NAACP Legal Defense Fund and as a counselor to the attorney general at the U.S. Department of Justice, where he helped design comprehensive federal reentry reforms; served as a lead staffer on an initiative to reduce the use of solitary confinement at the Federal Bureau of Prisons; developed national community policing initiatives; and supported access to justice programs.
PND asked Cadogan about the initiative's goals, the emerging field of pretrial justice reform, and the role of pretrial justice reform in advancing racial equity.
Philanthropy News Digest: Your organization is on record as saying "money bail obscures legally required risk analyses, traps people in jail, and contributes to unconscionable racial and economic disparities in our justice system." How does the cash bail system exacerbate the mass incarceration of people of color? And how central to the National Partnership for Pretrial Justice is the goal of advancing racial and economic equity?
James Cadogan: A fundamental principle of our justice system is the presumption of innocence: the idea that, when accused of a crime, you are innocent until proven guilty in a court of law. But across the country — right now — there are hundreds of thousands of people sitting in jail who haven't been convicted of any crime, nearly half a million at any given moment. They haven't even been tried. That's because of our current system of money bail.
Generally, after an individual is arrested they go before a judge who reads the charges and sets bail — an amount of money that the arrestee must pay in order to be set free. If you can pay that money, you go free; if you can't afford it, you go to jail. In other words, the size of your bank account determines your freedom. Simply put: that is unjust.
To avoid jail, those who can't afford to pay the bail amount directly might turn to a bail bondsman who can post the amount with the court while charging the individual a fee, often 10 percent of the bail amount. But if bail is set at $2,000, many people are equally unable to afford the $200 fee a bondsman would charge as the $2,000 bail imposed by the court. The money bail system discriminates against the poor — and people of color are disproportionately poor. Research has also shown that people of color are treated more harshly within the money bail system: for example, African-American men on average receive 35 percent higher bail amounts than white men who are arrested for the exact same crime.
PND: Arnold Ventures, formerly the Laura and John Arnold Foundation, has supported pretrial justice reform since 2011 — support that has included efforts to increase transparency around and the use of validated, evidence-based risk assessments in judges' decisions to release or detain defendants. Beyond strengthening implementation of the Public Safety Assessment— which was created from a database of more than 1.5 million cases in over three hundred jurisdictions — what is the partnership planning to do to reduce "unnecessary and unjust detention"?
JC: Pretrial detention rates are driven by a number of decisions and processes under the control of judges, prosecutors, public defenders, court administrators, and other system actors and stakeholders. The National Partnership intentionally connects and elevates partners with different types of expertise — for example[JC1] , research, policy development, or litigation — and supports them in taking on projects that span a range of pretrial justice challenges such as evaluating the impact of bail practices, working to expand the use of prosecutorial diversion that moves people out of the criminal just system, or undertaking advocacy related to the impossible caseloads many public defenders face.
Pretrial justice practices and operations vary significantly from jurisdiction to jurisdiction, so the breadth of the work we support to reduce unjust pretrial detention is important: National Partnership initiatives span four hundred counties across thirty-five states. At this pivotal time in the pretrial justice reform movement, it's important to understand that even though experts nationwide may have different approaches and don't agree on everything, they're all committed to the same end goal: reducing our unconscionable rates of pretrial detention. By supporting a diversity of efforts, we can help harness that momentum in a variety of places and spaces across the country and give ourselves the best chance of bringing about lasting policy change in pretrial justice. That's where see the biggest value of the partnership.
PND: The Arnolds and your colleagues have long been advocates for the use of data in decision making — not only in pretrial release decisions, but also in clinical trials, the evaluation of addiction treatment programs, and policies aimed at reducing gun violence. Are you seeing promising data from judges' use of the Public Safety Assessment?
JC: Yes. The pretrial detention population in New Jersey has dropped almost 35 percent since the state's criminal justice reform bill was passed and went into effect in 2017, which, among other interventions, required implementation of the PSA. Yakima County, Washington, found that pretrial release rates increased by 24 percent for people of color after implementation of the PSA. And in Mecklenburg County, North Carolina, fewer defendants were detained and money bail was used less often after the PSA was implemented.
PND: Criminal justice reform is one area where progressive- and conservative-leaning donors and organizations have been able to get together and actually accomplish something. Why do you think that is, and how optimistic are you about the prospects for progress in this area?
JC: Every interest and political perspective can find something to dislike about the current state of criminal justice in the United States. It is one of those areas in which the impacts of a broken set of systems with misaligned incentives result in complex, deep-seated problems that connect to virtually every public policy domain — education, economics, health care, good governance. That motivates a lot of people who have very different perspectives. Whether your issue of choice centers on the moral dimensions of how we confine human beings, or the massive economic drain criminal justice causes on state and local budgets, or a commitment to constitutional principles like the right to assistance of counsel or the presumption of innocence — we all find ourselves pulling together to reimagine the system, to help people who are suffering unnecessarily right now and to try to prevent others from falling victim to the same fate.
PND: You've served in a number of roles within the federal Departments of Justice and Defense. What is government able to do that philanthropy can't do? And what should the role of philanthropy be in advancing criminal justice reform?
JC: Government is far bigger and more complex than any philanthropy could ever be. And, whether federal, state, or local, the range of responsibilities that governments have is also unrivaled. No other entity is charged with trying to ensure the safe, efficient operations of our daily lives at scale. And no philanthropy could or should replace that.
Our mission at Arnold Ventures is to maximize opportunity and minimize injustice by seeking lasting, evidence-based policy change. That mission is a recognition of the fact that we can't spend our way out of big public policy problems. But we can be bold and innovative in supporting pilots or demonstrations that government may not be able to support. We can move more quickly than government in launching programs and initiatives. We can focus on evaluating the impact of discrete interventions. We can drive advocacy to open up our collective imagination about what is possible.
In criminal justice, philanthropy should be a strong catalyst for new ideas and experiments in reform. Criminal justice philanthropy at its best creates the space for interventions that can be replicated, adopted, and implemented — all to ensure we live up to our ideals as we try to deliver justice to people and communities across the United States.
— Kyoko Uchida