REPORT: Progressive Promises – Results of a Reform Prosecutor in Cook County
Chicago Appleseed Center for Fair Courts, the Chicago Council of Lawyers, The People’s Lobby, and Reclaim Chicago have released our ninth report discussing the current state of the Cook County State’s Attorney’s Office. Since State’s Attorney (SA) Kim Foxx took office in Cook County, our coalition has monitored the policies and practices of the Cook County State’s Attorney’s Office (CCSAO). Thanks to the pro bono help of Foley & Lardner, our most recent report, “Progressive Promises: Results of a Reform Prosecutor in Cook County,” considers the status of the CCSAO through the lens of SA Foxx’s campaign promises and the general understanding of the role of “progressive,” or reform, prosecutors across the country.
For many years, prosecutors across the country have caused harm by measuring their success by convictions and harsh punishments, giving way to the rise of mass incarceration. Since 2016, the notion of a “progressive” or reform prosecutor has gained significant traction, with campaigns around the country oriented around reducing mass incarceration rather than maximizing convictions and prison. Cook County’s State’s Attorney, Kim Foxx, who took office in December 2016 and was re-elected in November 2020, was part of the first wave of self-proclaimed “progressive prosecutors.”
Over the years, scholars have defined the “progressive prosecution” vision in a variety of ways. As Darcy Covert, a Staff Attorney at the King County Department of Public Defense in Seattle wrote for The Atlantic: “It is unrealistic to expect that even reform-minded prosecutors (or anyone, for that matter) can and will dispense justice when they have virtually boundless power and almost unlimited discretion to use it against criminal defendants.” To that end, Benjamin Levin, an Associate Professor at University of Colorado Law School, suggests a spectrum of “progressive prosecutors,” defining four different types: (1) the “progressive who prosecutes,” which includes those who are left or left-of-center in their personal political beliefs, but do not necessarily bring those views to administer their job; (2) the “proceduralist prosecutor,” who is likewise politically progressive but does, in fact, use those values in practice to bring “a sort-of good government liberalism” to the administration their office; (3) the “prosecutorial progressive,” whose prosecutorial decisions are “rooted in concerns about structural inequality” and is focused on “substantive, not simply procedural, justice”; and (4) the “anti-carceral prosecutor,” who understands that criminal law is fundamentally flawed and cannot nor will ever right social wrongs or balance unequal political and socioeconomic systems, and as such uses their power to shrink carceral institutions “or perhaps do away with them altogether.”
Although the definition of “progressive prosecution” is mixed amongst scholars and lawyers, State’s Attorney Foxx has reaffirmed her position within the reform prosecutor movement in the promises made during her campaigns. This report provides background on the campaign promises made by State’s Attorney Kim Foxx and details the CCSAO’s status of felony charging (specifically for Retail Thefts and Driving on Suspended Licenses) and the focus toward decarceration.
Our findings show, among other things:
- Foxx’s office has declined felony charges for Driving on a Suspended License over twice as often as the former Cook County State’s Attorney Anita Alvarez; during the pandemic (in 2020) this rate was as high as 45%.
- While Retail Theft is still often charged as a misdemeanor, in 2021, SA Foxx’s administration rejected over 48% of felony Retail Theft charges compared to Alvarez’s rejection rate of about 23% in her last year as State’s Attorney.
- In November of 2021, SA Foxx’s office was charging approximately 1,250 felonies per month, which resulted in about 500 people being sentenced to incarceration monthly—a significant reduction compared to felony charges and incarceration rates during her predecessor’s tenure.
While it is hard to measure the status of a “progressive prosecutor” without a concrete definition, it is incumbent on advocates and organizers to decide how elected reform prosecutors should engage. State’s Attorney Foxx has made substantial progress on many of the goals she set during her campaigns, but more can always be done to reduce the harms caused by the criminal legal system. SA Foxx has made important progress, de-emphasizing prosecution of certain charges – but still, 285 people were sentenced to incarceration for Retail Theft and 986 people sentenced to incarceration for Driving on a Suspended License in 2021.
While State’s Attorney Foxx has made strides toward decarceration in her tenure, some of the CCSAO’s policies continue to create unnecessary circumstances where people – primarily Black people – are being imprisoned for low-level convictions. Going forward, we will continue to monitor the CCSAO to ensure that promises are being kept and all possible steps are being taken to end the overly-punitive practices that have led to mass incarceration.