Commentary

We can all hope that someday the Council on Foundations will give out as many awards for public policy as it now does for publications, films and websites, because policy engagement is so rich and varied it can't be captured by a single award. The Open Society Institute (OSI) was grateful to be recognized by our peers for our public policy work, but what do we mean by engagement, or public policy, for that matter? To us, it is grantmaking and other forms of support that seek to change the policies and actions of government to foster justice or equality.

Civil society, including grassroots and community-based organizations, must lead the way in pressing for a strong public sphere and appropriate government responsibility, and foundations must help strengthen them to play this role. This approach sharply diverges from the dominant, conservative view that holds sway in all three branches of the federal government, and now, in many states: that government ought to get out of the way and let the private sector pick up the slack. And indeed, there is no other way to explain the "tax cut fundamentalism" that has gripped Washington, DC (which, as billionaire investor Warren Buffett recently pointed out, would reduce his tax rate to 3 percent, one-tenth of the rate paid by the receptionist in his office)—except as a means of rendering government incapable of performing most functions and of ensuring the justice and equality that are part of our national compact.

That makes me angry. These days, as I think about the challenges we face and the meager response to them by so many of us with power, privilege and platforms, I'm often angry. And I'm not ashamed to be. There is a lot to be angry about. I am angry when lifelines for poor students and families—like afterschool and urban debate programs—face cutbacks and closings, while connected companies like Halliburton and Bechtel line their pockets rebuilding Iraq. Or when poor single mothers thrown off welfare face ever more draconian work requirements, while tax cuts redistribute wealth upwards to those who are already the richest few. Or when one-third of the prevention funds in the president's AIDS initiative goes to a gravy train for the burgeoning "abstinence-before-marriage" industry.

Criminal Injustice

The catalog of outrages is thick. But I want to focus on a matter of particular concern to OSI, the state of criminal justice in America. America's bitter legacy of slavery, segregation and Jim Crow lives on in the criminal justice system. The poll tax is no more, but in Alabama and Florida, 31 percent of all black men are permanently barred from voting because of their criminal records; in Mississippi, New Mexico, Virginia and Wyoming, one in four black men is permanently disenfranchised.

Not only are our prisons and death rows filled with people of color in gross disproportion to their numbers in the population, but at every stage of the system—from who the police stop and question to who is strapped on the gurney awaiting the executioner's needle—we make it clear that we value the lives of whites more than those of blacks. According to the human rights group Amnesty International, in the United States the odds of receiving a death sentence in cases in which blacks killed whites are 11 times higher than capital murder cases involving a black victim and a white perpetrator.

Texas, the very state where the Council on Foundations held its annual conference this year, has a criminal justice system that should shame all decent people. There are now more than 70,000 people imprisoned in Texas for nonviolent crimes. The Center on Juvenile and Criminal Justice notes that African Americans are incarcerated in Texas at a rate seven times that of whites, and nearly one of every three black men in his 20s in the state is under some form of criminal justice control.

In Tulia, a small town on the Texas panhandle, 10 percent of the black population was jailed in the summer of 1999 on trumped-up drug charges on the sole testimony of a rogue, white undercover agent. What finally got them free? For one thing, the investigative journalism by Nate Blakeslee, a young reporter for the struggling independent weekly, The Texas Observer, which broke the story in June 2000. Who supports his efforts? The Open Society Institute. For another, the brilliant advocacy before a special hearing of the Texas Court of Criminal Appeals by Vanita Gupta, a tenacious young lawyer working at the NAACP Legal Defense Fund—her salary was paid by an OSI fellowship. If any Texas foundation came to the aid of those working for justice in Tulia, I'm not aware of it.

And the sad fact is that Texas is different than the other 49 states only in degree, and even then, not by much. In May, when the mother of a six-year-old murder victim in Louisiana had the conviction and the courage to oppose the death penalty for her own son's killer, the district attorney of Calcasieu Parish viciously attacked her.

Funding Uphill Struggles

I'm very proud of the positions OSI has taken, but distressed that I could give far too many examples of our isolation as we work on the profoundly important issues regarding the kind of justice meted out in this country. For example, Marie Wilson, president of the Ms. Foundation for Women and last year's Scrivner Award winner, likes to say that the women's movement is one foundation away—the Ford Foundation—from welfare. The bold, new JEHT Foundation and a handful of other funders, like Arca, Columbia and Public Welfare, join OSI in its work for a fairer criminal justice system. The courageous men and women working round the clock so that a man with an IQ of 75 isn't put to death in Arkansas, or someone barely out of boyhood doesn't go to prison for life under Alabama's "three-strikes" law because he stole a bicycle—these American heroes struggle uphill every day, and their work cries out for support from more than a handful of foundations.

The late philosopher John Rawls gave us an important test for measuring the quality of justice in a society. Would you view the system as fair if justice truly were equally distributed—at the level the worst-off in a society must endure?

I submit that no one reading this can look at the American justice system and say that you would trade places with a young black man pulled over by the police; that you would be satisfied, 40 years after the Supreme Court's landmark Gideon decision (establishing the right of a poor person to have a defense attorney paid for by the state), with the court-appointed lawyer you would get if you were a poor Latina woman; or think that the state penitentiary would be a fine place for your grandchild to spend ten years because he couldn't get treatment for his drug abuse problem.

If I'm right, more foundations should be joining this fight. Nothing less is at stake than the promise of justice that is every American's birthright.

This essay is adapted from Gara LaMarche's remarks in accepting the 2003 Paul Ylvisaker Award given to OSI at the Council on Foundations Annual Conference in Dallas in April. (For more, access "Leaders, Risk-Takers and Advocates," FN&C May/June 2003, www.foundationnews.org/CME/article.cfm?ID=2450.)

Illustration by Clemente Botelho