James Cadogan: The Promise of Public Policy: Seizing the Moment in Pretrial Justice

So, as Jeff noted, I work at Arnold Ventures as part of the Criminal Justice team. By way of introduction, I oversee the pretrial justice team, which supports and invests in innovations in bail reform, prosecution practices, public defense and more. A question I get fairly frequently is ​“why did you decide to join Arnold Ventures?” The short answer is that — after my prior lives as a civil rights lawyer and as a policy advisor in the Obama Justice Department — I know that I’m drawn to people and places who like to think systemically. And that’s what we do, and who we have, at Arnold: our mission is to invest in evidence-based solutions that maximize opportunity and minimize injustice. In addition to the pretrial team, our Criminal Justice work has two other teams: one that focuses on corrections and one that focuses on policing. For practical purposes, we work across the entire life-cycle of the criminal justice system.

I and my fellow VPs work under the leadership of Jeremy Travis, the head of AV’s Criminal Justice team; and I know that only very few of you don’t already know Jeremy well from his decades as a leader in this space — whether as President of John Jay, Director of NIJ in the Clinton Administration, or his time in New York City government — helping advance the thinking, research, and practice of criminal justice in the United States. And this is actually an important point: one thing that few people know about the CJ team at AV is that in addition to Jeremy and me, many of us are old government hands and have experience doing this kind of work at the federal, state, or local level. I like to think that makes us better at what we do as funders focused on government systems…because we’ve faced the same challenges so many of you face; and we see the world — opportunity, liability, strength, and weakness — through a similar lens as you. At AV we are focused on research, evidence, and — most important — the practical implementation of interventions in our policy arenas of interest. And, crucially, that is how I know I’m among kindred spirits here with you all: our shared concern with how we actually move the machinery of our government systems forward in pretrial.

Today, I would like to explain how I see things from the philanthropic sector; where we have the luxury of taking a step back and trying to think about how to support all of you who do this work. My contention is this: at this pivotal time, we cannot afford to remain in neutral. The journey towards achieving a new pretrial justice in America is at a tipping point. I would argue that the years of raising awareness, gathering evidence, and issue advocacy in pretrial have worked.

As leaders in pretrial services, you are carrying the flame of the brighter future that is within reach. And, in order to truly seize this moment, the rest of us — judges, prosecutors and defenders, researchers, advocates, and funders — must all recommit to elevating the importance of pretrial services in the national discussion. That will help make sure the chorus of voices driving towards change in pretrial systems and practice is neither abstract nor wishful; that every policy choice and political argument remains rooted in the real-world consequences that will follow.

So why do I suggest this focus? It’s really because pretrial justice is riding a larger, powerful wave — and we don’t know how long that wave will last. In the past few years, incarceration has risen to the forefront of a renewed national focus on criminal justice. Advocacy organizations have emerged with unique identities but one common refrain: The status quo of American incarceration must end. #Cut50 wants to reduce the nation’s prison population by 50 percent. The Last Mile believes job opportunities will break the cycle of incarceration. And REFORM Alliance wants to reduce the number of people under criminal justice control. Newer groups like these join older organizations, like The Sentencing Project and the Innocence Project, that were part of the movement in its formative years.

I’m excited by the visibility that those groups, old and new alike, are bringing to this work. Inspired by Silicon Valley startup culture, empowered by the global connectivity of social media, and fueled by bipartisan political activism, the newer groups are injecting energy into previously dormant issues. And, at breakneck speed, new resources are being earmarked to disrupt legacy criminal justice systems that are supposed to deliver justice but, too often, deny it. We need to encourage that growth and help further catalyze the movement. Importantly for all of us, we have seen an even more nuanced idea take hold: that mass incarceration isn’t simply a function of prisons and final disposition of cases — our jails are a huge contributor to contact with the criminal justice system and our pretrial detention practices are a massive and under-examined contributor to our astronomical incarceration rates. This must be addressed. Reform of the money bail system is the tip of that spear. It is the most high-profile issue in pretrial justice and exemplifies the promise of this new growth in the ecosystem of reform. That visibility matters.

Speaking of visibility, while Arnold Ventures has been investing in pretrial work since 2010, there are many colleagues and allies in the philanthropic sector who have been leading the charge for years — including our friends at the MacArthur Foundation through their Safety & Justice Challenge, at the Pew Charitable Trusts with their place-based work, and at the Ford Foundation with their support for dynamic narrative-shifting initiatives. Other peers will forgive me if I haven’t mentioned them — but we truly appreciate their leadership and partnership.

Now, the beauty of being here among experts who have dedicated their careers to the administration of justice, including pretrial, is that I don’t have to run you through the statistics of what we face and what you are have been quietly working to improve for years. But I will simply note for these purposes that even people outside this room who don’t work in this world have begun to understand the magnitude of the problem: that 425,000 people jailed every day or 10 million per year across the country is simply untenable. So it makes sense that ​“ending money bail” has become a rallying cry that echoes across the country. But, in addition to bail reform being — rightfully — held up as one of the next frontiers in the fight to undo the harms of overly-punitive criminal justice policies, the trajectory of the discussion is an example of a very real challenge: the danger of attempting to solve multi-faceted problems with singular solutions that satisfy a narrow ideological litmus test.

What do I mean by that? I mean: we know money bail is just one of a number of issues that demand our attention in pretrial. And the current focus on not criminalizing poverty is essential — but, too often, that dialogue overshadows the array of reforms that must be part of any change in bail practice to make it meaningful. If policymakers succeed in eliminating or reducing use of money bail in a jurisdiction’s practices, then we are left with an unavoidable, practical question that I know raises our shared antennae of implementation: ​“what comes next?” How does a pretrial justice system moving away from cash bail respond to the two critical imperatives enshrined in our laws? First, how do we preserve our bedrock presumption of innocence by releasing unconvicted people until their trial dates? And, second, how do we set appropriate conditions on the (relatively small) set of people who pose a real danger to society or who might willfully run from the law? For decades, money bail has been the unexamined proxy used to avoid answering those questions: under a cash bail system, if a judge deems you high-risk, they set a high bail. If you are low risk they set low bail. But, as you all know, assigning a dollar amount measures only the arrested individual’s wealth — it has absolutely no bearing on risk or on flight and completely ignores the legally prescribed analysis. The bail amount is just a fig leaf concealing the difficult ​“in or out” decisions judges must actually make every day.

Addressing that conundrum is where Arnold Ventures made its earliest pretrial investments, starting in 2010. As a philanthropy that funds research and advocacy to promote evidence-based policies, our contribution to this movement isn’t just in supporting high-performing organizations; it’s in pushing the boundaries of what’s possible, seeking out the experiments and innovations that could bring about the next generation of systems change. And the national debate about pretrial justice has evolved at warp speed since 2010: from Kalief Browder spending three years on Riker’s Island, to Sandra Bland in Texas; the untimely and tragic deaths of people of color in connection with their pretrial detention has only served to highlight the broader tragedy of how cash bail often operates: not only preying upon the poor, but also being disproportionately imposed on black and brown people every day. The reverberations of unjust pretrial detention means real people lose their futures: from lost jobs, to lost homes, to losing custody of children — it seems we now have near-universal recognition of those compounded impacts of unjust detention, and see it as an urgent problem we must address.

So — I return to the earlier question: what comes next? Or, to put a finer point on it: what does it take to actually move from a system that relies on money bail to one that doesn’t criminalize poverty and eliminates unjust pretrial detention? In my view, the core of a new pretrial justice lies in five things: (1) a commitment to reducing unjust detention; (2) ensuring the nobody is jailed because they cannot afford bail; (3) preserving the presumption of innocence by implementing a presumption of release for most arrested individuals; (4) reserving detention only for those few for whom other conditions will not protect public safety or ensure their return to court; and (5) protecting the constitutional guarantee of due process by only imposing any detention after a meaningful, individualized hearing. At Arnold Ventures, we published a Statement of Principles outlining these ideas in March of this year. Because it’s important that every stakeholder audience understands our team’s values, what we believe, and why we invest in pretrial work.

But, I said my remarks were about seizing this moment. And here’s the point: in order to implement the kinds of policy changes I just listed, pretrial services are essential: without leaders like you, our policy discussions are just promises. Every jurisdiction needs to go beyond the issue debate and reach some reasonable consensus that allows judges, administrators, and law enforcement to take action. But most, if not all of these reform ideas mean alternatives to pretrial detention — and those alternatives will be administered, executed, or delivered by the pretrial services agencies of each jurisdiction — or by somebody playing that role in order to make things work. But we don’t talk about that enough.

For example, too often, the debate over risk assessment becomes something that halts progress in our advocacy and political dialogue. Every jurisdiction needs to evaluate and decide for itself the value of an assessment to its systems change and engage a policy process analyzing how that kind of data might help inform judges’ discretionary decisions. But no risk assessment, by itself, is a ​“solution” — it’s just one policy option — and the latest chapter in a decades-long, healthy (and important) debate about how we use research to mitigate the bias inherent in human decision-making. What is far more important is that we keep our eyes on our shared, bigger prize: enacting the five principles I identified — reducing detention; not criminalizing poverty; adopting a presumption of release; using detention only where all other interventions are insufficient; and protecting every individual’s constitutional right to due process. As I travel the country talking to advocates who use their bully pulpit so effectively in different states and on the national stage, it turns out that we generally agree on some version of these essential ideas. That is a huge opportunity.

The hard work of improving the architecture of our social institutions is rarely rewarded by overnight transformation; rather, it is justified daily by concrete actions that have real-world consequences for those who come into contact with our criminal justice system. If we look closely, we can see that there is far more that unites us within the pretrial justice reform movement than divides us. And — when we pay more attention to how we make pretrial systems changes real — it becomes clear that any differences we have on individual tactics or interventions should never stop us from standing together to support jurisdictions that are trying to figure out a path forward. We have to seize this moment.

So where is that moment now? Change is happening. In New Jersey, for example, we saw a powerful, years-long grassroots engagement and advocacy campaign that led to the passage of the New Jersey Criminal Justice Reform Act, which implemented a variety of pretrial reforms, including a presumption of release for most defendants, reducing the use of cash bail, enacting speedy trial requirements, and requiring judges to assess risk as part of their decision-making. New Jersey’s success showed the country what can be achieved with thoughtful alliance among diverse groups of state and local advocates and government officials.

And others are following swiftly in New Jersey’s wake. In Texas, litigation and a wave election led to sweeping changes in the judicial and leadership infrastructure of Harris County — as a result, they are on the cusp of transformational change in their pretrial system. After that, in California, aggressive and effective advocacy combined with the commitment of state legislators led to new legislation (SB-10) that eliminated cash bail in the state: but the final bill came under fire from progressive advocates due to its permissive preventive detention provisions; and now the law is on hold pending a referendum spurred by California’s powerful bail lobby. Most recently of all, New York State’s legislature passed a bill mandating a complete overhaul of county pretrial practices, on an aggressive nine-month implementation timeline.

There are other tales of systems change percolating: in New Mexico, in Ohio, in Iowa and more. They each take their own twists and turns — some with early success; some not. So what do these wildly diverse approaches tell us? I suggest to you that the current legislative momentum and the unique pretrial justice stories of each state are a reflection of the fragile consensus we’ve reached — but that fragility is only increasing. For all those of you who’ve already been affected by this kind of movement, many more of you will soon join those ranks. And with each successive state or county requiring change, the burden will, in many respects, be on pretrial service leaders and court administrators to work with your elected officials and judiciary to determine what success looks like.

So how do we pave the way for progress together? Well, whether national or local, a wise movement towards systems change should keep at its center the idea that we don’t have to agree on everything before we can accomplish something. The movement would better served by collective recognition of the dizzying array of laws, legacy systems, and stakeholders (including judges, prosecutors, pretrial service agencies, and the indigent defense bar) that can impact our shocking rates of pretrial detention for better or worse, but are painstaking to untangle and are unlikely to lend themselves to a single set of ​“fixes” that will apply exactly the same way in every county or state.

To do that, we need to foster a culture in which experts — like you — can experiment with a variety of approaches to solving these urgent and complex public policy problems; to allow room for trial, error, and improvement on interventions that could help maximize opportunity and minimize injustice. In order to do that, every pretrial justice bill introduced into a city council or state legislature, every policy idea generated by a think-tank, and every research paper published by an academic should be met with the questions: what resources are needed to make this happen?; which offices are responsible for the critical decisions?; and how do we support effective uptake of new practices?

Demonstrating success in implementation — the responsibility so many of you have in this room — is a critical way to prove that we are all better off keeping our eyes on the prize and pulling together. And the recent explosion of new initiatives and programs dedicated to criminal, social, and economic justice is a perfect backdrop that can help drive creative, justice-minded pretrial work. But it must be married to a clear focus on practice. In that spirit, national advocates must be just as willing to engage the legislative fights over preventive detention in California‘s SB-10 as we are to support county-based initiatives that open the door to long-term change. We should be as eager to require rigorous evaluations to identify the most effective pretrial support services as we are impatient in demanding immediate action for tens of thousands unjustly behind bars right now. We can’t afford to let the perfectionism of our ideas get in the way of real movement in the field.

For our part at Arnold Ventures, earlier this year, we brought all of our existing pretrial justice grant making and initiatives into a community of practice — the National Partnership for Pretrial Justice—through which we are forging closer bonds among our grantees who are helping drive pretrial research, policy, and implementation. We are proud to support grantees doing pretrial work in 400 counties across 35 states. Those counties and states are as diverse in ideology as they are in discipline — but we believe that in forming relationships across different practitioners in diverse jurisdictions, we can help them produce the results that will be the most effective for the most people.

If this call for a balance of ideas and action sounds familiar — that’s because it is. That balance defines our community of practitioners, advocates, elected officials and academics at its best. In fact, it reflects our counties, states, and this country at their best: our strength is in our diversity; our weakness in our divisions. Our communities are heterogeneous, speaking with different, sometimes opposing, perspectives and expertise; but, at their best, always mindful of a shared and urgent cause — furthering justice in a land whose noble aspirations have too often been outpaced by its cruel realities. As this wave of interest in criminal justice sweeps across the county, we would give ourselves the best chance to preserve the fundamental liberties currently denied so many in our pretrial justice system by more intentionally centering our attention on practitioner work, acknowledging the connected complexities of what we face, and building a movement to match.

I look forward to working with all of you to make it happen.