When she was sworn in as Cook County State’s Attorney in 2016, Kim Foxx was among the first in a wave of reform-minded prosecutors to take office across the nation — in St. Louis, Philadelphia, and elsewhere. Since then, Foxx, whose election was seen as a direct rebuff to her predecessor Anita Alvarez's handling of the Laquan McDonald shooting, has made it her goal to transform the culture of the country’s second-largest prosecutor’s office.
But a report released yesterday by three groups that supported Foxx's campaign — Chicago Appleseed Fund for Justice, Reclaim Chicago, and the People’s Lobby — finds there’s more she can do realize the less punitive State’s Attorney’s Office she campaigned on.
The report, the fourth in a series measuring prosecutorial changes since Alvarez’s departure, summarizes interviews with 28 defense attorneys practicing in Cook County. That methodology is due in part to the difficulty of quantifying cultural change in such a large office; as State’s Attorney, Foxx serves as the face for some 800 prosecutors.
“What we know is that Anita Alvarez and her predecessors were some of the more punitive prosecutors in the country,” says Sarah Staudt, senior policy analyst and staff attorney at Appleseed Fund. “Under the Alvarez administration, I think it would be reasonable to say that Cook County was unusually or notably lockstep in looking for high prison sentences for pretty much all crime.”
The report suggests several meaningful changes in the State's Attorney's Office during her tenure. Generally, defense attorneys said that prosecutors appeared to exercise greater individual discretion under Foxx than they did under Alvarez, under whom, the report says, they faced pressure from supervisors to avoid leniency. Those surveyed also said that prosecutors appear more willing to dismiss low-level drug possession cases and refer defendants to diversion programs.
Most notably, prosecutors appear to be setting lower bonds under Foxx, following a directive from the chief judge’s office to end the pre-trial jailing of those unable to post bail. According to the report, “many of the practitioners we interviewed said that the State’s Attorney’s change in policy on bond and pretrial incarceration issues was the single biggest change in policy since the Alvarez administration.”
The report also devotes significant space to how Foxx is prosecuting firearm possession, a topic hotly debated by city and county officials. According to 75 percent of attorneys interviewed for the report, under Alvarez, county prosecutors “were not allowed to offer any sentence other than a felony conviction with substantial incarceration for [felony gun possession] crimes, no matter what the arrestee’s personal circumstances were or how weak the evidence.”
Under Foxx, however, defense attorneys report that prosecutors are more willing to look at gun possession cases individually. They've also embraced recommending the state's new First Time Weapon Offender Probation Program, which, with the consent of the State’s Attorney's Office, enrolls select nonviolent offenders in probationary programs and can result in a charge being expunged from the offender’s record. For instance, one prosecutor referenced in the report offered probation to a 19-year-old caught carrying a gun following three armed attacks on his family within three weeks.
"These are gun possession cases, they are not shooter cases — they're situations in which someone is carrying a gun," says Staudt. "Those cases are so diverse in terms of who the defendants are and what led to them carrying a gun.
"That's exactly how we got into mass incarceration during the drug war: by deciding that every single person who possessed drugs should have the exact same thing happen to them, which was a prison sentence."
According to previous reports by the same three advocacy groups, the incarceration rate in Cook County has decreased by 19 percent under Foxx.
In the first half of 2019, crime in Chicago was down nine percent compared to the same period last year. In 2018, the Chicago Police Department reported that total crime was down by more than three percent (and violent crime by more than eight percent) from 2017. Homicides, which reached a 20-year high in 2016, have declined year over year, but not to pre-2016 levels.
The Chicago Police Department, for its part, is doubling down on preventative police practices such as gun seizures. Meanwhile, the groups behind the report suggest that less incarceration can lead to a dip in crime, and not the other way around.
The shift in Foxx's office towards more lenient prosecution hasn’t been universal, the report notes. Defense attorneys said that some county prosecutors still adhere to a tough-on-crime philosophy — especially, they surmised, under pressure from supervisors hired by Alvarez or previous administrations. “Many practitioners noted that the degree of discretion State’s Attorneys offered was the ‘luck of the draw’ of which State’s Attorney you happened to be negotiating with,” the report reads.
The document concludes by recommending that Foxx conduct a review to ensure county prosecutors are acting in line with her policies. It also suggests that she implement consequences for those who aren't, and that she “ensure attorneys are recognized and promoted based on their effectiveness in emphasizing restoration, justice, and overall community health and safety.”
The big question hanging over the report, of course, is whether Foxx will be around long enough to implement those reforms. Faced with the fallout from her handling of the Jussie Smollett case and continued opposition from pro-police groups, Foxx is a vulnerable incumbent in the 2020 state's attorney race. Her field of challengers recently grew to four, and if she's defeated, a less reform-minded top prosecutor could quickly undo her changes in office culture.
One clear takeaway from the report: the way in which the State’s Attorney’s Office resolves cases can have a major effect on individual defendants' outcomes.
“Prosecutors hold a huge amount of power in terms of deciding how our courts function on a day-to-day basis,” Staudt says. “It’s really important that we have a prosecutor who is pursuing evidence-based strategies for how to make our community safer and how to make sure that our court system runs efficiently and in a way that's just.”