The Kim Foxx effect: how prosecutions have changed in Cook County The state’s attorney promised to transform the office. Data shows she’s dismissed thousands of felonies that would have been pursued in the past. Published in partnership with The Marshall Project

Those who want to reform the criminal justice system are placing their bets on a new wave of prosecutors who have been voted in around the country. Elect a district attorney who will pursue fewer cases, the reasoning goes, and fewer people will be drawn into jails and prisons. In 2016, Kim Foxx unseated an incumbent in Cook County, Illinois, vowing to transform the nation’s second-largest local prosecutor’s office and to bring more accountability to shootings by police while also reducing unnecessary prosecutions for low-level, non-violent crimes. Cook County State's Attorney Kim Foxx at her inauguration party Tuesday, March 15, 2016. | Photo by Stacey Rupolo One year into her term, Foxx did something no other state’s attorney had ever done: she released six years of data outlining what happened in every felony brought to her office, offering an unprecedented view into the decision-making of prosecutors and its impact. Our analysis of this data provides the first detailed look at the more than 35,000 cases that flow through Foxx’s office every year. We found that since she took office she turned away more than 5,000 cases that would have been pursued by previous State’s Attorney Anita Alvarez, mostly by declining to prosecute low-level shoplifting and drug offenses and by diverting more cases to alternative treatment programs. Foxx has not finished her term, so these trends could yet change.

Data note: This chart depicts cases that passed through felony review. Prosecutors’ first chance to decline to bring charges comes during a process called “felony review.” This chart depicts felony arrests by police, which decreased since Foxx’s election. How many of these cases did her office prosecute? During Foxx’s tenure so far, prosecutors have pursued a smaller share of cases than under the previous state’s attorney. To quantify the number of people affected (and account for the drop in arrests), we modeledwhat might have happened had Foxx’s office continued prosecuting cases at the same rate as her predecessor. The difference between the two lines approximates the roughly 2,850 cases that likely would have been pursued under the previous administration (about a 6% decrease in the caseload).

Further analysis shows that Foxx’s office is exercising discretion in the way it handles drug cases too, which skip the felony review process and go directly to courts. We estimate that Cook County prosecutors have dismissed an additional 2,300 drug cases that, under Alvarez, would have otherwise gone to trial—or ended in a plea. The defendants in some of these cases instead have been diverted to treatment and counseling that led to their charges being dropped. When Foxx was campaigning for office, Alvarez was under fire for her handling of several high-profile police shootings in Chicago, most notably the killing of teenager Laquan McDonald. Foxx unseated her in the Democratic primary and won the general election with 72% of the vote. In trying to implement her policy changes, Foxx has faced resistance, especially from police unions. She’s found herself embroiled in several controversies of her own making—most notably over the handling of the Jussie Smollett case. A Cook County judge has appointed a special prosecutor to look into how Foxx and her deputies dealt with, and dismissed, the case against the actor who starred in “Empire,” who was accused of staging what he reported as a hate crime attack. Our analysis of Foxx’s policies offers one quantitative way to evaluate what concrete differences progressive prosecutors can make, particularly because policy decisions have historically been, as Foxx said in a recent interview, “driven by anecdote.” We started by focusing on prosecutors’ first opportunity to influence a case: felony review. After an arrest, police bring a case to felony review for prosecutors to decide whether to pursue it as a felony. Approved, case is charged as felony We analyzed felony review data, comparing trends to the previous administration. Bond hearing Not approved Released without charges Case is charged as misdemeanor Arrest Felony review After an arrest, police bring a case to felony review for prosecutors to decide whether to pursue it as a felony. Felony charges brought by prosecutors set off a cascade of effects on the accused’s life, family and community. Bail is set (if it’s not paid, they’re jailed). Jobs are lost. Even without a conviction, the charges might appear in background checks, making it more difficult to find employment and housing. Foxx campaigned on the costs of over-criminalizing behavior. “We can’t keep trying to scare people into believing that the solution to our ills is locking everybody up and we’ll all feel better and be safer,” she said in arguing for treatment programs, community-based initiatives and prevention. A month into her term, Foxx announced her office would stop prosecuting shoplifting as a felony if the stolen goods were worth less than $1,000, a threshold three times higher than under the current state law.

Foxx’s policy to prosecute felony shoplifting only for thefts of more than $1,000 led to a steep decline in charges, from 300 per month to about 70. Felony arrests Felony charges

When Foxx began her term, shoplifting was the second most frequent offense in her office’s caseload. Today it’s dropped to eighth. While theft cases of smaller value items are still being prosecuted as misdemeanors, the policy has effectively eliminated thousands of felony cases. Not only is Foxx charging a smaller share of shoplifting cases, but police are bringing fewer arrests for felony review.

In response to Foxx’s policies and the resulting lower prosecution rates, an association of suburban police chiefs and Chicago’s police union, the Fraternal Order of Police, issued a vote of no confidence in Foxx and demanded her resignation in April. The union wrote, “we cannot ignore the choices you have made and the impact it is having on our ability to reduce and deter criminal activities,” charging that Foxx’s policies worsen crime rather than deter it. In a press conference following the union’s vote, Westchester Police Chief Steve Stelter bemoaned the “hoops we have to go through to try to get a felony charge, and most of the time it’s not approved.” Foxx’s policies are allowing criminals “to go back on the street and commit their crimes again,” he said. Martin Preib, second vice president of the Chicago Fraternal Order of Police, echoed Stelter’s frustration in a recent interview. “The general sentiment is that they will not be punished for crimes. There’s an overall increase in emboldening criminals across the board,” Preib said, adding “The guy who shoots a guy one minute might be a shoplifter the next.” At the same time, police are angry about the way Foxx’s office has dealt with officer misconduct, particularly the exonerations of dozens of people arrested on drug charges by corrupt cop Ronald Watts, who later went to prison himself. The union has called for a special prosecutor to handle any cases of police misconduct because of its members’ distrust of Foxx. The relationship between Foxx’s policies and how crime has changed in Cook County is difficult to quantify. When she was elected, the city was in the midst of a spike in shootings that brought it nationwide attention. Since then, Chicago has experienced a sustained drop in shootings, and police are bringing fewer arrests to prosecutors. Last year, shootings and murders in Chicago both decreased, and shootings were down 14% this year through August. According to a study released by Loyola University, reported crime in Cook County has been trending downward overall for decades. Foxx said her office had some clashes with local police, especially as it began to change prosecutors’ charging standards rather than, as she put it, rubber-stamping police decisions. Her office developed a guidebook for felony review to clarify new expectations for which cases it would charge. In a recent interview, she pointed to her prosecutors’ improved conviction rate as they started to drop weak cases earlier in the process. Despite the blowback from police unions, Foxx’s policies have been praised by community activists and even defense attorneys. In June, Amy Campanelli, the public defender of Cook County, wrote in an op-ed in the Chicago Tribune, “Never before have we had a prosecutor prioritize resources for more serious cases, while diverting less serious cases—until Foxx.”

For years, unabated gun violence has been the backdrop of Chicago politics and gained national attention. Foxx campaigned on shifting prosecutors’ focus to gun violence amid a spate of killings. Two and a half years later, approval rates and felony prosecutions are trending down for nearly every offense category. Gun charges are an exception. They are the only major category to increase under Foxx.

Foxx’s office is prosecuting fewer cases across every category of crime, except gun charges categorized as “unlawful use of a weapon.” Felony arrests Felony charges

Note: This chart depicts all cases referred to the state’s attorney’s office, including those that did not undergo felony review.

Compared to 2016, police make 40% more felony arrests each month for unlawful use of a weapon, which often amounts to possession of a gun without a permit. In the first half of 2019, they comprised 25% of cases prosecuted by Foxx’s office after felony review. The year before she took office, they were less than 15%. When asked about the increase in gun possession charges, her office responded that it comes with steadily increasing conviction rates as the administration prioritized stronger cases, citing meetings with police departments, trainings and the office’s newly created Gang and Complex Homicide Unit.

While Foxx was able to adopt policies to change how gun crimes or shoplifting are addressed, she has had far less leeway when it comes to the most prevalent crime in Cook County: drug cases. Unlike most cases, police determine initial felony drug charges without prosecutors’ approval. Prosecutors can intervene after charges are filed by dismissing or diverting cases. Arrest Case is charged as felony Felony review Bond hearing Drug cases Preliminary hearing Arraignment Plea of guilty Trial Case dismissed This processunderscores one major impediment to reducing felony prosecutions: drug cases represent the bulk of Cook County’s caseload.

Drug cases represent over 40% of offenses prosecuted. Charge Severity

Foxx campaigned on “end[ing] frivolous prosecutions of non-violent drug offenses,” and we examined drug cases to see whether prosecutors used their discretion after police filed initial charges. Unlike felony review, where we saw charges decrease, we tracked the opposite trend for drug cases: is Foxx dismissing more cases after charges are filed? If dismissal rates rise, fewer cases go to trial or end in conviction.

In the 9,500 cases each year of low-level drug charges, often simple possession, Foxx has dismissed a slightly higher%age than Alvarez. Class 4 drug felonies (up to 3 years in prison), commonly low-quantity possession For less frequent, more severe drug charges (trafficking, dealing, production), about 4,000 a year, dismissal rates have nearly doubled. Class 3 to X drug felonies, commonly dealing, manufacturing, conspiracy

The state’s attorney’s office said that its alternative prosecution programs, where people are directed to community-based services and treatment, result in more people whose cases end up being dismissed. Alternative prosecution rose about 8% during the first two years of Foxx’s term, according to a July report. To translate this shift in drug prosecutions into human terms, we compared Foxx’s handling of drug cases with what likely would have happened had Alvarez’s policies continued under Foxx. We estimate that Foxx has dropped 2,300 cases that would have gone to trial or ended in a plea under the previous state’s attorney. The first half of Foxx’s term is a case study. Prosecutors represent just some of the many actors in the criminal justice system, and a reform-minded state’s attorney must consider opposing forces, from legislators, to police, to judges, to community members. Some of the actions of Foxx’s office’s are not quantifiable, such as her support for bail reform and marijuana expungements, as well as improved relationships with public defenders. Measuring the impact of her policies can help set expectations for what’s possible in transforming the criminal justice system. The results in Cook County point to the potential opportunities in other communities, as well as the need for leaders to open up the black box of data for public accountability. Additional data analysis by Walter Zielenski.