As Cook County state’s attorney Kim Foxx’s first year in office has drawn to a close, a group of independent justice system observers have published a new report evaluating her leadership thus far. Foxx ran against former state’s attorney Anita Alvarez on a reformist platform, vowing to institute a variety of changes to the prosecutor’s office, from greater data transparency to changes in criminal charging practices. The report found that she’s making progress on some of her promises, but there’s plenty of room for improvement.
The report—published by Reclaim Chicago, the People’s Lobby, and the Chicago Appleseed Fund for Justice—evaluated Foxx’s progress on five key issues: advancing bail reform, increasing transparency and accountability, lessening the collateral consequences of justice system involvement in people’s immigration status, ending the drug war, and reducing overcharging. All five were issues Foxx promised to tackle in her “Transition Report,” published as she took office last December.
On bail reform, the trio of organizations commended Foxx for her backing of county and state-level pushes to change the laws and practices around the imposition of money bail. However, the report notes that Foxx’s prosecutors have lagged on supporting pretrial release, calling for I-bonds in just 5 percent of 1,700 observed bond hearings this past August.
On data transparency, Foxx is judged to have been acting in good faith. The authors acknowledged her release this October of a “groundbreaking” report on criminal cases handled by her office in 2016. It revealed the kind of cases the state’s attorney’s office pursued in the city and suburbs, the demographics of defendants, and data on sentencing and disposition. “We, and in fact criminal justice advocates all over the country, are grateful for this unique and truly innovative effort at transparency and accountability on Foxx’s part,” the report’s authors noted. They encouraged Foxx to double down on sharing existing data and gathering or digitizing new information that will help hold prosecutors accountable.
The report’s authors chided Foxx for making little progress in reducing the collateral consequences of criminal prosecution on immigration status, particularly given the Trump administration’s push to increase collaboration between local law enforcement and immigration enforcement authorities. The authors found that, “While Foxx continues to voice public support for undocumented victims of crimes and an intention to develop more specific policies to reduce the collateral consequences of prosecution on documented and undocumented immigrants, the state’s attorney’s office has not yet released any specific proposals.” They found it particularly troubling that prosecutors have continued the established norm of bringing up a person’s country of birth in bond court and asking whether they wish to have their consulates notified of their situation—a question that, I’ve observed, usually is answered with a “no.” This practice calls attention to a person’s immigration background in open court, “creating a possible record of non-citizenship that could expose them to immigration repercussions.”
Foxx was also criticized for not instituting concrete policies that could reduce the volume of petty drug cases and for continuing to allow the police to file felony drug charges without oversight from her felony review office. All other felony charges in Cook County require the review of an assistant state’s attorney. Nevertheless, the authors commended Foxx’s recent commitment “to work with The People’s Lobby and Chicago Appleseed to create a pilot project for non-prosecution of some drug crimes.”
The report’s final evaluation pertained to “overcharging,” which has long been a practice in the state’s attorney’s office. Prosecutors would bring “every conceivable count,” to ensure the highest penalties possible. “This practice was known to create enormous pressure on accused people to take plea deals instead of going to trial, ensuring higher conviction rates and more manageable caseloads for the office,” the report noted. “The driving force in the office was convictions, not justice.” Promotions have historically hinged on trial wins.
The authors wrote that Foxx has taken several steps to combat the culture of overcharging that frequently criminalized poverty: improving training for prosecutors; raising the threshold on felony shoplifting from $300 to $1,000; and no longer charging people with driving on a suspended license when the suspensions are due to unmet financial obligations. Foxx was also praised for vacating the convictions of 15 men whose cases were tied to corrupt CPD sergeant Ronald Watts and dismissing charges against two men facing retrials based on new DNA evidence. “These voluntary dismissals stand in especially stark contrast to the Alvarez administration, which was known for rejecting DNA evidence of innocence.”
The report notes that Foxx faces significant obstacles to her reform agenda: county budget cuts, adversarial attitudes from some judges and the Fraternal Order of Police, and, perhaps most significantly, the established office culture among the 1,100 employees she oversees. In other words, while Foxx may not be reelected, many rank-and-file prosecutors are here to stay.
I asked the state’s attorney’s office what steps Foxx is taking to communicate the seriousness of her reform agenda to career staff. Are there new incentives for prosecutors to seek justice over trial wins and case dispositions? Is there oversight to make sure the new values of the office are being practiced?
“We’ve hired the first ever Ethics Officer and Executive Director for the Conviction Integrity Unit,” spokeswoman Tandra Simonton replied in a statement. “We created and implemented new evaluation tools which include a holistic review of prosecutors. We returned discretion to [courtroom prosecutors] and provided community service and engagement opportunities to staff.”
She noted too that the office is planning to release its own performance review early next year.
Correction: This post has been amended to reflect the trends the report’s authors observed during bond hearings in August 2017.