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Chicago Appleseed Center for Fair Courts, The People’s Lobby, the Chicago Council of Lawyers, and Reclaim Chicago have released the eighth report in our series on prosecutorial accountability in Cook County. The report, “Decarcerating Cook County: Use of Diversion Programs for Low-Level, “Non-Violent” Felonies Increased Substantially under Kim Foxx compared to Anita Alvarez,” examines how diversion courts allow people to avoid the traditional process of a trial or plea, conviction, sentence, and life-long record of system involvement.

Diversion programs play an important role in alleviating some consequences of over-incarceration, administering justice more fairly, and keeping court caseloads reasonable and manageable.

“Decarcerating Cook County” examines State’s Attorney (SA) Kim Foxx’s use of alternatives to prosecution that help relieve some issues of over-incarceration and case management abilities. Our findings show that since SA Foxx took office in 2016:

• The Cook County State’s Attorney’s Office (CCSAO) has increased the total number of felony charges sent to diversion programs by 30%. By vacating convictions after successful completion of the program (or never issuing convictions at all) diversion programs can help avoid saddling people with long-term stigma, criminal justice debt, or with the myriad harms of pretrial incarceration. 
• The proportion of Black participants in these diversion programs has increased from 48% (Alvarez) to 56% (Foxx). Unfortunately, Black people are still disproportionately denied access to these programs compared to the demographics of people charged with and convicted of felonies in Cook County. From 2011 to 2020, Black people represented 66% of people charged with those offenses, but only 54% of the people diverted; white people only comprised 15% of the total people charged with those offenses, but 28% of the diverted population. 
• The CCSAO has upped the use of pre-plea diversion programs from 58% during Anita Alvarez’s administration to 66%. By allowing more people access to this more efficient and more successful form of diversion, the current CCSAO has helped more people avoid lengthy involvement with the criminal system. Since 2011, 82% of pre-plea diversion participants (for whom either graduation or failure was recorded) graduated successfully from the program, whereas only 49% of post-plea diversion participants did. 
• The percentage of diverted narcotics cases has more than doubled compared to the prior administration. Still, SA Foxx’s Office has prosecuted or diverted at least 44% of felony marijuana charges — with about a quarter of those people being sentenced to some form of incarceration (some spending an average of 5.4 months in jail). 

Diversion programs were established with the hope to fill a rehabilitative need and help people avoid further contact with the criminal legal system. Unfortunately, barriers to entry into these programs exist. For instance, stringent background rules are required for certain diversion programs, so people are ineligible if they have been convicted of any crime in the past. When criminal history is enough to deny individuals even a chance to participate in diversion programs, the negative impact falls disproportionately on Black Chicagoans (Black people account for 66% of the felony convictions in the last ten years, but only make up 23.8% of the Cook County population). 

The discretion given to prosecutors allows for State’s Attorney Foxx to continue improving access to these programs in order to appropriately decarcerate the jail and home surveillance in Cook County.

Data from the CCSAO shows that, generally, Cook County’s diversion programs are more available and equitable now than they have been in prior years. Still, COVID-19 has seriously disrupted the operation of these programs. Overall, the SA’s Office diverted only 8% of commonly diverted cases in 2020, as opposed to 19% in 2019.  The People’s Lobby, the Chicago Council of Lawyers, Reclaim Chicago, and Chicago Appleseed Center for Fair Courts recommend that the CCSAO consider ending narcotics overcharging, expanding the charges eligible for diversion, ending the prosecution of marijuana charges, and growing diversion during the COVID-19 pandemic.

You can find all reports at ThePeoplesLobbyUSA.org and ChicagoAppleseed.org.