Coalition to End Money Bond rallies at the Thompson Center, Chicago, June 17, 2019. Photo by Charles E. Miller.(CC BY-SA 2.0) Via Flickr.
Trump or Biden may be the apocalyptic contest, but the lives of thousands of Chicagoans depend on whether incumbent State’s Attorney Kim Foxx defeats her challenger Pat O’Brien. The winner will be in charge of the second largest prosecutors’ department in the country, whose 700 plus state’s attorneys charge and prosecute thousands of mostly poor and Black people.
They get to decide whether to release or charge them, recommend or oppose bail, and whether to send them to prison and a life of social exclusion. Now, since 2016, Chicago and Cook County have a state’s attorney, Kim Foxx, who says she wants to reform our notoriously punitive system. She is opposed by Pat O’Brien, running as a Republican and branding himself the tough-on-crime, “law-and-order” candidate.
Foxx is supported by Bernie Sanders, Elizabeth Warren, progressive unions and activists, and the Democratic Party. She had overwhelming support in the Black community in her 2016 landslide victory (72% of the vote) and also in the 2020 primary. Republican Pat O’Brien’s base is in some of the white-majority suburbs and wards — in particular, wards where Chicago police live. He is endorsed by Trump-supporting John Catanzara, president of the Fraternal Order of Police Lodge 7, which gave O’Brien almost $58,000, and the editorial boards of the Chicago Tribune and Daily Herald.
Maybe that’s all my readers need to know to cast their vote for Foxx. But the election is not just about these two individuals, it is another front in America’s race war. We need to unpack the underlying racism of O’Brien’s comments on crime, drugs and gangs, because his assumptions are shared by Police Supt. David Brown, the editors of the Chicago Tribune, and, inconsistently, Mayor Lori Lightfoot. Like the rest of the Democratic Party with the exception of a few aldermen, Mayor Lightfoot endorses Foxx; but she also endorses Police Supt. Brown’s overpolicing and demands for more detention and prosecution, with their disproportionate impact on Black and Latinx communities.
What can progressive prosecutors accomplish?
Foxx came into office thanks to a massive grassroots campaign by Black Lives Matter activists to oust States Attorney Anita Alvarez. Alvarez was not only complicit in the coverup of the police murder of Laquan McDonald, she represented a department with a history of prosecutorial misconduct and wrongful convictions. Foxx ran as a reformer, promising a raft of policies to restore integrity and reduce incarceration.
How well did she do?
Foxx says it is her policy to reduce incarceration and shift resources from misdemeanors and non-violent felonies to higher-level felony cases. Since she took office, a coalition of lawyer and community organizations followed her work and found “a continual reduction in mass incarceration in Cook County.” Their report reminds us that it is mainly “aggressive and overly punitive prosecution practices” that is responsible for the country’s high conviction rate, with Black and Latinx, only 28% of the population, making up 56% of the U.S. prison population. In Cook County, Foxx brought the average sentences of incarceration down 34% from her predecessor, Anita Alvarez’s 2012 average, though the crime rate was similar.
How? By not prosecuting minor traffic offenses and failure to pay fines; by not prosecuting low-level retail theft, under $1000, as felonies; and by rejecting many police felony and drug charges. In all these, “a significant improvement in the outcomes for Black and Latinx people under the Foxx administration compared to the prior Alvarez administration,” according to the report. A more recent Tribune analysis found that Fox dropped all charges against 29.9% of felony defendants in her first three years, much higher than the 19.4% dropped by Anita Alvarez in her last three years in office. In a 2019 study, The Marshall Project found that Foxx dropped more than 5,000 cases Alvarez would likely have prosecuted.
In the 9,500 cases each year of low-level drug charges, often simple possession, Foxx has dismissed a slightly higher percentage than Alvarez. For less frequent, more severe drug charges (trafficking, dealing, production), about 4,000 a year, dismissal rates have nearly doubled. The Marshall Project.
In one of the more controversial outcomes, Foxx’s office dropped 1/4 of all felony narcotics cases — Class X drug cases such as drug trafficking, manufacturing, delivering or intent to deliver; these are non-violent drug offenses that disproportionately affect persons of color. She also moved to expunge over 1000 marijuana convictions, with 1200 more to come before the end of the year .
A revealing example, on which Foxx was attacked not only by O’Brien but also by Police Supt. Brown and Mayor Lightfoot, was Foxx’s refusal to prosecute hundreds of people arrested during the protests in two weeks following George Floyd’s death. Unsurprisingly, 75% of people charged were African American.
Echoing Brown and Lightfoot, O’Brien said they should have been detained “over the weekend” anyway. We heard the same back-and-forth when the Aug. 9 police shooting was followed by looting, with Brown charging that the looters were “emboldened” when Foxx didn’t charge arrestees in June. Lightfoot joined the attack on Foxx and Chief Judge Evans, though without calling them out by name.
Foxx was doing something very different here. After the first wave of arrests, she said the department’s policy was to review arrests with “a presumption of dismissal” for less serious misdemeanors. More, prosecutors would only prosecute more serious charges if there was “body-worn camera or dash camera footage” showing the offense was “intentional and/or malicious in nature.” (The official policy is here.) Foxx told the Sun-Times that prosecutors would review and probably dismiss more than 800 of the misdemeanors. She was, in effect, pushing back against the criminalization of protest and refusing to lump protesters together with looters.
Brown and Lightfoot had been unprepared for the looting and were under pressure from business owners and city elites. So they shifted blame from the city to the county, to States Attorney Kim Foxx and Chief Judge Tim Evans for their refusal to keep the protesters in jail.
Needless to say, Foxx doesn’t have much support among police, and the Fraternal Order of Police Lodge 7 demands her resignation. A few Democratic aldermen and their committeemen, representing retailers or wards with heavy police residents, broke from the party to oppose her reelection. (So far, Brendan Reilly, 42nd, Brian Hopkins, 2nd, and Ray Lopez, 15th; Foxx lost to Conway in the 42nd Ward and barely won the 2nd. )
Searching for Willie Horton
O’Brien has seized on the protests and looting, with ads and comments familiar from the law-and-order messaging of Republicans — and Democrats — from Nixon on. His signature ad could have come out of the Trump campaign, and his statements in debate and interview echo Trump’s racist attacks on Chicago and other Democratic cities.
“Crime-lover Kim Foxx has declined to prosecute a record 25,000 felony offenders, charged with murder, rape, drug dealing and gun possession. Suspects police investigated and arrested, and Kim Foxx says, “Let em go!” Chicago has over 25,000 suspected felons on our streets and they’re feeling like they can get away with anything. Save Chicago, Fire Kim Foxx!”
O’Brien’s ad: Foxx lets 25,000 felons go, and they spread through the county, red blobs overwhelming the suburbs, a Trump-like dog-whistle priming racist fears.
A Republican Party ad calls on us to fire Kim Foxx to save the children:
“The violence has continued without end … There’s blood in the streets, innocents are being slaughtered, children teenagers and their families grieve … shots fired at softball game … multiple children being killed in Chicago.”
On O’Brien’s Facebook page and interviews, he presents one homicide or assault after another as a result of Foxx’s policies. One post: “Another I-Bond Criminal attacks, beats and robs a blind man while on an I-bond,” with a photo of the Black suspect. The suspect looks pretty good; if only O’Brien could find a Willie Horton.
Demonization is the basic tool of political campaigning in the culture wars, not just reducing candidates to a policy or a flaw, but branding them as “the other.” Foxx is not just soft-on-crime, she’s a “crime-lover” who cares more about felons than their victims, the 25,000 “felons” she let loose on Chicago streets to “spill over” into the suburbs. The “felons” — who actually haven’t been to trial — are the enemy, all the same, all just criminal. It’s victims vs. victims, us vs. them, Foxx the champion for the rapists and murderers, O’Brien is the voice for the victims cue the ominous music, the flashing lights of squad cars, the blood-red blob spreading into the suburbs, priming the racial fears of white suburban women … a voting bloc now becoming as imaginary as the “felons.”
Round up the usual suspects (Black teenagers)
Go behind the culture-war rhetoric and demonization, and you find two assumptions that O’Brien shares with Police Supt. Brown. Brown’s plan to prevent July 4 violence was to round up teenagers at “drug corners” to make drug and gun arrests and then expect Foxx and Chief Judge Timothy Evans “keep them in jail over the weekend,” even if they’re arrested early in the week.
Arrests at “drug corners” are not explained in the news reporting, but of course this “strategy” means “stop-and-frisk,” racial profiling, and unconstitutional searches of Black youth. Brown’s demand that the prosecutors and judges keep the arrestees in jail is a repudiation of the bail reform set in place by Chief Judge Evans in 2017. The suspects are, after all, not convicted of a crime and presumed innocent, and the point of bail reform was to end incarceration of people simply because they are too poor to pay bail.
The Coalition to End Money Bond rallies at the Thompson Center, Chicago. Photo by Charles Edward Miller, June 17, 2019. (CC BY-SA 2.0) Flickr.
Here are a few questions reporters should ask. First, are “drug corners” really a driver of crime? This claim is one of the justifications for the “war on drugs,” still being waged even with the partial (only partial) legalization of marijuana.
Second, are gangs responsible for Chicago’s homicides and violent crimes? If not, it won’t help to target gangs — or, rather, to round up Black men whether or not they are in a gang. (Police labeling of gang members has been discredited as “arbitrary, discriminatory, over-inclusive and error-ridden.”)
Chicago’s anti-violence policing strategy is based on gangs that are long gone, according to criminologists at the Great Cities Institute at University of Illinois-Chicago. The African American, “hierarchical super-gangs, fighting citywide over control of drug trafficking” have “fractured into different types of cliques and neighborhood peer groups,” and most of the violence is not drug-related or gang-related, but “interpersonal disputes and retaliation, unrelated to traditional gang rivalries and drug markets.”
O’Brien buys into this policing approach. When he talks about what he would do differently to reduce violence, one of his central strategic ideas is starting a “rackets unit” to “attack gangs from investigation to trial.”
But Foxx gets it: “When we are talking about a lot of conflicts that are being settled with guns, we’re not talking about large organizations protecting corners. We’re talking about a slight indignity that happened on Facebook or someone avenging a loss from a year ago.”
The violence rates have roots in a the profound poverty and despair in Chicago’s hypersegregated neighborhoods. Lightfoot and Foxx know that the answer is massive investment, not massive incarceration. But since the money isn’t there, the city has no viable strategy. It’s a lot easier to fend off criticism with police roundups and shows of force than it is to tax Chicago’s super-rich, and it’s a coin in a fountain to hope for federal money from a Biden administration. This isn’t anti-violence strategy, it’s theater. “Waiting for Biden” … or is it Godot?
What counts as “character”?
Foxx and her office blundered in the Jussie Smollett hate crime hoax, first charging him with a felony then dropping all charges, with missteps along the way. O’Brien initially tried to reduce Foxx to those blunders, before he was later able to demonize her for releasing the people arrested during the protests and looting.
Somehow that counts against Foxx’s character and judgment in a way the frame-up of four Black men for the murder of Lori Roscetti doesn’t count against O’Brien — a “bungled case” he personally prosecuted and for which he still won’t accept responsibility. The police coerced confessions, and the prosecution’s crime lab expert “gave false testimony” on the witness stand. He and his prosecutors should have known the lab samples didn’t match the suspects. The defense attorney, Kathleen Zellner, claims O’Brien “pushed ahead with the prosecution anyway. Inexcusable.” He must have spotted the problem with the lab evidence and he should have smelled the problem with the confessions. Tribune columnist Eric Zorn concludes: “The Smollett case is an embarrassment. The Roscetti case is a travesty.”
Or, maybe, a crime.
Win-at-all costs prosecution. Marcellius Bradford, framed for murder after a coerced confession and false lab testimony. Fourteen years in prison. Pat O’Brien prosecuted.”We know you all ain’t do this crime. But it’s a white woman from Springfield. Somebody’s got to pay for this crime.” Kim Foxx campaign ad.
Foxx broadcast two ads focusing on the “Roscetti four,” but she identifies 27 other wrongful convictions on O’Brien’s watch. He represents what has been the norm for prosecutors, win at any cost, “helping make Chicago, the false confession capital.” If you have this view of the criminal justice system, then you don’t think those 27 are the only wrongfully convicted. The Tribune and Daily Herald, in their editorial board endorsements of O’Brien, claim to care about criminal justice reform, say that O’Brien of course cares also and will “balance” reform and justice. But somehow the false convictions don’t count as heavily as the Smollett case or the “excesses” of bail reform. Flaws in “character” and “judgment” don’t apply to prosecutors acting according to the prevailing norms. “Justice” as well as “reform” — as if they can be separated and opposed; these platitudes are a cover for supporting mass incarceration and what Foxx calls “the old, failed approach” in which prosecutors “win at all costs,” are judged by the number of their convictions.
Mayor Lightfoot was ready to shift blame to Foxx for the August looting, but reforming the criminal justice system is still a principle for her. After “researchers” released this list of $64 million in settlements due to wrongful convictions “under Pat O’Brien,” the mayor reiterated her support for Foxx:
“We must not go backwards to the failed approach that Pat O’Brien supports — an approach that put innocent people in prison and cost Chicago taxpayers tens of millions of dollars,” Lightfoot said. “As a former federal prosecutor, I know we have a responsibility to our residents, and particularly to the victims, to hold the guilty accountable. But we undermine all notions of justice when the innocent are denied a fair trial and wrongfully imprisoned.”
The Coalition to End Money Bond outside the Thompson Center, Chicago. Photo by Charles Edward Miller, June 17, 2019. (CC BY-SA 2.0). Flickr.
I have to end with a complaint from the leftist side of my brain. I contributed to Foxx’s campaign, and I consider her a leading figure in criminal justice reform. Yet she is a political office holder and politician, not a movement activist. We have to keep a critical eye on the progressive politicians we support. A critical perspective will make you wonder why Foxx’s prosecutors have “opposed release [of pretrial detainees] 70 t0 80 percent of the time during the pandemic.”
Over 500 detainees — remember, not convicted of any crime — and 411 jail employees have tested positive for the virus, seven detainees and three staff have died.
And there are still over 4000 prisoners in the jail.
Why? Go ahead and speculate.
We can’t be always be essentialist about labeling our “public servants “progressive” or “neoliberal.” Many have complex identities — just like everyone else — they dress from more than one wardrobe, they dine at many tables. Foxx was put into office by a kind of coalition that has become part of the new normal since the financial crisis and the rise of the Movement for Black Lives: grass-roots organizations, left groups such as Democratic Socialists of America, unions and single issue organizations, the networks of individual activists mobilized through social media and in election campaigns … and politicians. Among the politicians, there are a small but influential number who bridge professional politics and movement activism. People like Cong. Alexandria Ocasio-Cortez or Chicago’s socialist city council members. If they maintain a grass-roots identity and a relationship with the movements they come out of, they remain somewhat accountable to them or at least in touch. As a result, they behave somewhat differently from the professional managers like Mayor Lightfoot or State’s Attorney Foxx, who come out of corporate law or the justice system. “Foxx is a more timid member of the progressive prosecutors’ movement of Philadelphia DA Larry Krasner and San Francisco DA Chesa Boudin,” a court-watching friend told me.
—Paul Elitzik
Some recommended reading:
Daniels, Matt. “The Kim Foxx Effect: How Prosecutions Have Changed in Cook County.” The Marshall Project, October 24, 2019. https://www.themarshallproject.org/2019/10/24/the-kim-foxx-effect-how-prosecutions-have-changed-in-cook-county.
Agnew, Stephanie. “Prosecutorial Discretion in a Tumultuous Year.” Chicago Appleseed Fund For Justice (blog), September 30, 2020. http://www.chicagoappleseed.org/our-blog/prosecutorial-discretion-in-a-tumultuous-year/.
Cook County State’s Attorney, Policy position: “RE: Declining to Prosecute Protestors in The Wake of George Floyd Demonstrations.” June 30, 2020. https://consideredsources.com/wp-admin/post.php?post=4419&action=edit
Hagedorn, John, Roberto Aspholm, Teresa Córdova, Andrew V. Papachristos, and Lance Williams. “Chicago’s Gangs Have Changed. Our Violence Intervention Strategies Should Too.” Chicago Reporter. Accessed June 6, 2019. https://www.chicagoreporter.com/chicagos-gangs-have-changed-our-violence-intervention-strategies-should-too/.Read the full mythbusting report here —an excellent and well-written short introduction to gangs and policing in Chicago:“The Fracturing of Gangs and Violence in Chicago: A Research-Based Reorientation of Violence Prevention and Intervention Policy | Great Cities Institute.” Accessed June 6, 2019. https://greatcities.uic.edu/2019/01/29/the-fracturing-of-gangs-and-violence-in-chicago-a-research-based-reorientation-of-violence-prevention-and-intervention-policy/.Kiran Misra, South Side Weekly. “A History of Bail Reform,” January 31, 2018. https://southsideweekly.com/a-history-of-bail-reform/. Explains bail bonds and how judges should and don’t determine bail, and its race and class bias of bail.
Kiran Misra, “The Battle Against Money Bonds.” South Side Weekly, February 20, 2018. https://southsideweekly.com/cook-county-battle-money-bond-bail/.“The Good Wife, Season 7, Episode 1: Bond. Prime Video.” Accessed October 27, 2020. A dramatic look at bond court, reality which justly deserves satirical treatment. Liberal feminist lawyer Alicia goes to Bond court, assuming that bail will be decided for her clients on some criteria of justice. She finds it’s an industrial process, quantity not fairness, each defendant getting 90 seconds so the judge can make his daily quota. If she tries to argue, she gets squashed and her client is penalized. https://www.amazon.com/gp/video/detail/B014CRIF62/ref=atv_dp_season_select_s7. #
