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Kim Foxx drops more felony cases as Cook County state’s attorney than her predecessor, Tribune analysis shows
Monday, August 10, 2020 Chicago Tribune by David Jackson, Todd Lighty
By David Jackson, Todd Lighty, Gary Marx & Alex Richards
Cook County State’s Attorney Kim Foxx is dropping felony cases involving charges of murder and other serious offenses at a higher rate than her predecessor, according to a Tribune analysis that comes amid a growing debate over criminal justice reform.
During Foxx’s first three years as the county’s top prosecutor, her office dropped all charges against 29.9% of felony defendants, a dramatic increase over her predecessor, the Tribune found. For the last three years of Anita Alvarez’s tenure, the rate was 19.4%.
In all, a total of 25,183 people had their felony cases dismissed under Foxx through November 2019, up from 18,694 for a similar period under Alvarez.
Foxx said she has tried to create an office culture where assistant state’s attorneys can openly discuss dropping felony charges if a case has legal problems, pointing to wrongful convictions that have occurred over the years and the dark history of Chicago police detectives torturing people of color to gain false confessions.
“Recognizing the history that we’ve had around wrongful convictions, recognizing our ethical obligations as prosecutors ... requires us to reinforce that people can, if they believe a case is flawed, bring it to our attention, and we will dismiss it if it’s appropriate,” Foxx said.
The most well-known case where Foxx’s office dropped all felony charges was that of “Empire” actor Jussie Smollett, who had been accused of staging a racist and homophobic attack on himself in downtown Chicago. Prosecutors in 2019 moved to dismiss all 16 felony counts against Smollett. The legal term for this, “nolle prosequi,” means the office was declining to prosecute.
A Cook County judge last summer appointed former U.S. Attorney Dan Webb as a special prosecutor to investigate whether there was any misconduct in the way Foxx’s office handled the allegations against Smollett. In February a grand jury indicted Smollett on new charges, making allegations nearly identical to the charges dropped by Foxx’s office.
Webb has said he will issue a final report to the court and to the Cook County Board of Commissioners, although no date has been specified. Foxx had opposed the appointment of a special prosecutor, saying it would duplicate the work of the county’s inspector general, who was already looking into the Smollett case.
The Tribune findings are based on data that Foxx’s office posted online showing the outcomes for more than 810,000 charges from 2011 onward. The data shows for each charge whether the defendant entered a guilty plea, was found guilty or not guilty at trial, or had the charge dismissed.
Defendants often face multiple charges in a single case, and it’s common for prosecutors to drop some of the charges before and even during a trial. The Tribune wanted to determine how often the state’s attorney’s office dismissed all charges; the analysis was ultimately based on the cases of about 287,000 defendants.
It is impossible to determine from Foxx’s database, which omits names of defendants and their criminal case numbers, how many people were arrested on new charges after their cases were dismissed.
The Tribune also could not use the data to analyze the reasons prosecutors cited for dropping all charges against defendants. That’s because for the time period examined, the information on the reasons is incomplete.
In her interview, Foxx stressed that she brings a reform-minded philosophy about what constitutes justice and how the resources of her office should be applied. Foxx said she is more selective about prosecuting the strongest, winnable cases.
But the Tribune found that Alvarez actually had a higher overall conviction rate.
Of the felony cases that have been concluded, Alvarez’s office won convictions in 75% during her last three years in office, according to the Tribune’s analysis, higher than Foxx’s 66% in the first three years of her term.
Alvarez, who now works for a global consulting firm, declined to comment for this story.
Looking at outcomes
When police arrest a person in connection with a felony crime such as murder, carjacking, armed robbery or rape, prosecutors review the evidence and determine whether charges should be filed. (Police can directly file charges in some instances, including certain drug cases, without prosecutors’ approval.)
Once a person is charged with a felony, the defendant appears before a bond court judge who determines whether that person should be held in jail or be released before trial, and under
what conditions he or she should be released back into the community. The case continues through the court system, where a grand jury files an indictment or a judge determines there is probable cause to let the case proceed.
The case could end in a number of ways, including a trial. Some defendants charged with less serious crimes are diverted to counseling or treatment programs. Or prosecutors may choose to drop the charges; reasons that can happen include cases when witnesses, police or victims fail to appear in court, or judges disqualify evidence.
In the felony data, narcotics defendants account for about 40% of all criminal cases handled by prosecutors. Foxx has long argued that enforcement of drug offenses disproportionately affects communities of color and that nonviolent drug users are better served outside the criminal justice system.
Indeed, the Tribune found that Foxx’s office dropped more than half of all felony narcotics cases, compared with just over a third for Alvarez.
But the disparity in dismissed cases was especially acute among people charged with the most serious drug crimes — trafficking and other drug manufacturing and delivering offenses categorized as Class X felonies, the most serious class of felony other than murder. Foxx’s office dropped 1 out of every 4 of those Class X drug cases, compared with about 1 out of 9 for Alvarez.
When first told of the Tribune’s finding that Foxx’s office was dropping cases more often, Foxx’s aides suggested the Tribune also look at conviction rates.
When the Tribune did so, the analysis found prosecutors under Alvarez won a higher percentage of felony cases than under Foxx. Even if drug defendants are excluded, Alvarez’s office still had a higher conviction rate, winning 84% of non-narcotics cases to 82% for Foxx.
Foxx’s office decided to look at conviction rates a different way. Instead of analyzing all 80 criminal offense categories represented in the database, her office selected a group of 34 that officials said represented “serious and violent offender categories.”
Among the categories Foxx’s office did not include in its analysis: felony burglary, narcotics and child pornography.
When asked about those exclusions, Foxx said that when she first came into office Chicago was experiencing a spike in violence and she wanted to focus her attention primarily on prosecuting those crimes.
“I want to be clear, we’re not being dismissive of any of those (other) offenses.” she said. “We’re not in any way saying, by trying to parse the data, about which cases are significant, because to every victim, every offense is significant.”
For the categories Foxx’s
office selected, she had a conviction rate of 83%, officials said — higher than Alvarez’s 81%.
A different mentality
The Tribune’s findings add a new element to the debate over criminal justice reforms and public safety in Chicago, which has seen far more killings in 2020 than the more populous cities of New York and Los Angeles.
As of Aug. 2, the number of people killed in Chicago had hit 450, up 55% from 291 by the same date the previous year. Shootings were up 48%, jumping from 1,220 to 1,804, according to Chicago police numbers.
Foxx said her policies have not led to the recent spike in violent crime, which she noted occurred during a pandemic and time of civil unrest, and that other big cities also have seen increases.
“The fact that we’ve had three years of my policies that have been put in place and over the three years we did not see an increase in violent crime would suggest to me that ... that is not a logical outcome,” she said.
As she has pushed for reforms in the office, Foxx has said residents deserve a prosecutor who is not driven by a win-at-any-cost mentality but “by a persistent quest for justice, in whatever form that takes in a particular case.”
Foxx says she’s seeking another term because she wants to continue reforming the criminal justice system.
Among the actions she has taken as state’s attorney: not prosecuting people for nonviolent offenses such as minor traffic offenses for failing to pay tickets, declining to prosecute shoplifting as a felony if the stolen merchandise was worth less than $1,000, and diverting drug defendants to treatment and counseling programs instead of prosecuting them on criminal charges.
On her campaign website, Foxx says she has exonerated 80 wrongly convicted individuals, expunged the criminal records of more than 1,000 low-level marijuana offenders and helped change the bail system.
Along with Chief Judge Timothy Evans and Cook County Board President Toni Preckwinkle, Foxx has advocated for lowering or eliminating cash bonds for defendants facing a host of charges, including many gun offenses. They have said people should not be held in jail before their trial merely because they are too poor to come up with bail money.
These public officials argue that their changes to the bail system have had no impact on violent crime. But a Tribune investigation earlier this year found that the key study used to support those claims, done by Evans’ office, had flaws that minimized the number of defendants charged with murder and other violent crimes after being released from custody under bail reform.
As more defendants were freed from jail, judges increasingly placed many of them on electronic home monitoring as a condition of their release. Defendants who destroy the ankle bracelet or simply take off can be charged with felony escape.
It’s a charge where the difference between Foxx’s office and Alvarez’s is particularly stark. About 400 people are charged every year with felony escape. During Alvarez’s last three years in office, she dropped a total of 55 such cases, compared with 429 for Foxx.
Foxx could not explain why her office has pursued far fewer escape cases than under Alvarez. “We don’t have an official policy on escape and so I don’t have an answer for you as to why that number would be different, other than, again, we’re asking our people to be able to proceed on cases where the facts, the law and the evidence support it.”
Matthew Walberg, a spokesman for Cook County Sheriff Tom Dart, who administers the electronic monitoring program, criticized Foxx’s office for dropping so many escape cases after charges were filed.
“Individuals who commit these types of violations should be held accountable for their actions,” Walberg said.
David Jackson has been a Chicago Tribune investigative reporter since 1991, except for a year at The Washington Post, where he shared the 1999 Pulitzer Prize for public service for articles on citizens shot by police. At the Tribune he is a 4-time Pulitzer finalist.
Investigative reporter Gary Marx came to the Tribune in 1989 and worked for nearly a decade in Latin America, including in Havana from 2002 to 2007. He was eventually expelled from Cuba for his reporting on human rights and other issues. Before the Tribune, Marx worked for the Orlando Sentinel and for the Christian Science Monitor.