Justice in America Episode 16: A Conversation with Kim Foxx
Josie and Clint talk to Cook County's head prosecutor.
Today we are talking to Kim Foxx, the head prosecutor of Cook County in Illinois. Cook County, which includes 135 separate municipalities including Chicago, is the second largest county in America, and has a population bigger than 28 states.
State’s Attorney Foxx was elected in 2016. She replaced Anita Alvarez, who had, to put it lightly, a disappointing record on criminal justice reform. Foxx’s election was a major victory for the criminal justice reform movement, and for progressive and racial justice organizers in Chicago. She is the first black woman to run the prosecutor’s office in Cook County.
She is joining us today to discuss her past two years as state’s attorney—what’s been successful, what has been challenging, what obstacles she’s faced and how this job has changed her perspective on criminal justice reform.
The criminal-justice crusade of Kim Foxx, Chicago Reader
Why Kim Foxx is Challenging Anita Alvarez for State’s Attorney, Chicago Mag
Kim Foxx gets a report card, Chicago Reader
Kim Foxx Just Released Six Years of Data , The Appeal
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Kim Foxx: The defendants who we have in our courtroom, a good majority of them have also been victims of violent crime. We’re talking about the same people. And our affection for victims in the prosecutor space is this false affection because next week they might be our defendants. And if we don’t recognize that tension and recognize how they got there in the first place and recognize the failing schools, concentrated poverty, all of the risk factors are what perpetuate this cycle and only look for the solution in the responders, we will always fail.
Josie: Hi everyone. I’m Josie Duffy Rice and this is Justice in America. Each show we discuss a topic in the American criminal justice system and we try to explain what it is and how it works. Thank you everyone for joining us us today. You can find us on Twitter at @Justice_Podcast, you can like our Facebook page, just find us at Justice in America, and subscribe and rate us on iTunes, we’d love to hear from you. So, at the beginning of the episode you heard a clip from our guest for today, Kim Foxx, she is the State’s Attorney for Cook County, Illinois. State’s attorney is just Illinois’ way of saying district attorney or head prosecutor. Kim Foxx is the head prosecutor for Cook County, which includes 135 separate municipalities, including Chicago. It is the second largest county in America and has a population bigger than 28 states. So, she has a lot on her plate. She is the first black woman to run the prosecutor’s office in Cook County. She was elected in 2016, and replaced the former state’s attorney who had, to put it lightly, a disappointing record on criminal justice reform. And her election was a major victory for the criminal justice reform movement, and for progressive and racial justice organizers on the ground in Chicago. Kim Foxx joined Clint and I from her office in Chicago to discuss her past two years as state’s attorney—what’s been successful, what has been challenging, what obstacles she has faced and how this job has changed her perspective. We’re so thrilled to feature her as our guest today so stay tuned.
Josie: Thank you so much State’s Attorney Foxx for joining us today.
Kim Foxx: Thank you for having me, it’s an honor to be on.
Josie: Before we get it into the kind of current work that you’ve done as state’s attorney and that you’re working on, I wanted to hear what you had to say about what made you want to run for DA.
Kim Foxx: Yeah, so I served as an assistant prosecutor in this office for 12 years, started in 2001 and I had focused my career primarily on child abuse and neglect cases. So I’d been an assistant public guardian representing kids in the foster care system and had become really frustrated by the process by which children were being removed from their parents and placed into foster care. It was a system that was overwhelmingly dominated by people of color, largely poor people of color, who we were charged with acting in their best interests, but were navigating a system that really didn’t own the other failures that saw families coming into care. And I thought, because a lot of the kids who I was representing as their lawyer had similar backgrounds to mine, they were either coming from public housing, had been on public support, had a family member who was incarcerated, a family member who had mental health challenges. And there were lawyers like me and others who were making decisions on what was in their best interest, many of those folks having no idea of what those interests were or how to even navigate that. And as a guardian, you were responding to the petitions that were filed by the state. The state’s attorneys made the decision whether to remove someone from care. And so I was always responding. It was already late by the time that I said, ‘Hey, this kid should not have been removed from their home.’ They were already removed. And so I wanted to be in the prosecutor’s office to have some measure of control, to be able to say, ‘No, we shouldn’t file this case. This kid shouldn’t come into the system.’ And we figure out what to do later. And so I applied to be a prosecutor in child welfare and I did that for four years. Having done it three years as a guardian, four years as a state’s attorney, seven years of dealing with like vulnerable children when you’re young and had not yet had my babies, was really trying on my spirit. And so I left doing that and worked in our juvenile delinquency division. And the heartbreaking part about that was the same kids that I was advocating for in their best interest as a guardian or as the stat, I was now charged with prosecuting for delinquent behaviors. So on one side of the building we were talking about their father’s incarceration, talking about their challenges and on the other side of the building saying it didn’t matter they needed to be prosecuted. And that was a tough dynamic to navigate. And I had that deep appreciation, but again, I had colleagues who couldn’t, that didn’t matter to them. Right? They committed a crime, we had to prosecute them.
Kim Foxx: And it’s like we don’t care about the other stuff? We don’t care about their beginnings, the origin stories here? And I, you know, I had an origin story and so I did that for a few years and then I left, came back as a supervisor in the delinquency division with a mandate to think more holistically, to have, you know, our people think more thoughtfully about this and became really frustrated with the previous state’s attorney who I would have ultimately run against because I was told that I was not on program, right? That my job was to prosecute crimes. And it was, you know, what does the victim want? What does the victim want? What does the victim want? And it was with this blind notion that victims wanted punitiveness in juvenile court when they didn’t. I mean, they wanted kids to stop doing the things that they were doing, but also recognize that if you gave him a record early, they’d come back in later. So I left in 2013 very frustrated because I cared about the field as a victim of crime myself, sexually assaulted as a child, and wanting to believe using those experiences to be an advocate for someone else that that was a place I could do it, but feeling like I was potentially doing more harm than the good that I’d set out to do.
Clint: There’s so much there and then so much to unpack in there and we appreciate you sharing your story with us and I have so many questions. I want to start with, it’s interesting because clearly you are entering this work and what’s animating so much of the reason you do the work that you do is a profound sense of justice and a rejection of what it sounds like is this sort of false dichotomy of thinking about the context from which a young person comes and how that shapes their trajectory and how that might lead them to situations in which crime takes place. And firstly, the idea that we should only be thinking about what has happened in this specific and singular moment and not considering the sort of larger context of what leads somebody to commit or engage in certain activities that are deemed criminal. And so I’m wondering with all that in mind, if there was ever any reticence for you to enter the field of being a prosecutor knowing the sort of institutional incentives that being a prosecutor often puts on people and and did you fear that you might not be able to carry out the sort of justice oriented work that you wanted in that sort of context?
Kim Foxx: I think the way I came to the work, right? Coming specifically to do child protection, so I was a lateral hire from the guardian’s office, choosing to do that type of work. I didn’t really concentrate on the bigger, bigger pieces. Right? When I decided that I didn’t want to continue in child protection or couldn’t continue in child protection, kind of just from my own space, I also knew I didn’t want to work at the felony trial division. And I was in a prosecutor’s office like this in Cook County, there was a currency placed on being in the Felony Trial Division 26th and California. That’s where the prosecutors go. That’s where the real work was. I never wanted to go there. I never wanted to go there because the overwhelming majority of the defendants and the victims were black or brown. We had it, in our gangs unit I had to go over there for trial, they’d have a wall and on the wall were pictures of gang members who had been prosecuted with like little sayings under their names and they were all black and brown. And yet the staff, the attorneys, there were very few attorneys of color who were in the Felony Trial Division. I mean you’re talking about a division that has 400 attorneys, you know, a senior level attorney, what we would call a first chair at one point over the course of like a number of years, there were only one at the most three black people who sat in first chair positions. And so I think for a lot of people who work in this office, there was always that 26th street was the place that was coveted for some and disheartening for others. And so my reticence around that work didn’t come coming into the profession because again, I came in with the premise that I wanted to use the power of the prosecutor’s office and that discretion, the power to say no as opposed to the power to say yes and I’ve thought at the felony trial level that that power wasn’t about saying no. It was about the churn and the racial dynamics and again having grown up in this city, I could see myself in the people who were coming there. Quite frankly, I would say to folks whenever I would go to the courthouse on 26th and California, I would look for people that I know because it would not be unusual for somebody I went to grammar school with to come through. I once had in child protection, a classmate of mine who we were taking her children and we were in third grade together. And I remembered when she told me then that she had been abused and here we were, some 20 some odd years later and her children were being taken from her because she had suffered some mental breakdowns. That was hard enough. I didn’t want to be a part of watching that on a daily basis at the criminal courthouse. And so I rejected that. And when I ran for office, you know, that was what was used against me by my predecessor who believed that her bread and butter as a prosecutor was the number of people that she had locked up. And she had said, ‘Well, Kim Foxx is only a juvenile prosecutor.’ That was by choice because I believe that the power of the prosecutor in the juvenile space to think about rehabilitation and redemption and the potential of the young people who had been charged with crimes could deflect them away from graduating into the adult system. And so that reticence was, I did have a choice, whether I wanted to be a part of it and I said no. When I decided to run, what I had to own however, was it’s all mine now. My name is on the door in the juvenile court and at the Felony Trial Court. There’s not a place where the churn isn’t happening that my name is now attached to.
Josie: Yeah. I was going to ask you this exact thing, which is, you know, for someone who wasn’t trying to engage in the traditional prosecutorial practices, which as I know very well and as you obviously know, were very common in your predecessor’s office. What does it mean to have your name on the door? What does it mean to not want to be, you know, at 26th and California now you run 26th and California? You know, what, what kind of challenges does that present and what has been, I guess even surprising about it?
Kim Foxx: It’s overwhelming sometimes I think is the short answer because it is so vast, right? We are the second largest prosecutor’s office in the country. We have the largest single site jail in the country. The amount of people who come in and out of our justice system is vast on any given day. So just the scope of the operation, um, can sometimes be overwhelming. You know, the main court is in the middle of the city, I’ve got five other courthouses throughout the county. We serve 5.4 million people. And so there’s kind of the gravity of the work, you know, and then there’s the granular of the work that it’s sometimes you have to like brace yourself for. And you are inheriting an office that has operated under a certain way for a hundred years. It wasn’t just my predecessor it was those who came before and an electorate who voted me in are still being told about criminal justice issues from a place of fear and not reform. Right? And so there’s a lot of fear mongering that happens, you know, people want to tell me very quickly what’s going to hit the news that will get people afraid. So bond court reform for example. I’m very proud of the work that we’ve been doing as a county on bond reform. When I left the state’s attorney’s office, I went to work for the president of our county board and that’s where I got to like flex my muscles on, okay, what are we doing about driving down jail populations? I got to work on raising the age litigation in Illinois. I helped pass the automatic transfer legislation that again stopped us from sending juveniles into adult courts early. I got to do that as an advocate before I became a prosecutor. Now I’m here and what more people want to talk about in the office are not the policy initiatives and the long term impact. It’s the narrative around crime, particularly in Chicago where our violence numbers have been so high. You have the president who is talking about Chicago and the violence and the people who are accused largely are black and brown, the victims are largely black and brown and lost in all of that noise is what are the impacts of the systems and the failures? And what we hear is, ‘That person scares me.’ I do more time defending reform than I do pushing it.
Clint: Do you mean publicly or in an institutional way? Like are you having to convince people that work in your office that this is the right thing to do or is do you have to both convince the people in your office and convince the sort of larger electorate?
Kim Foxx: Both. I have to convince both. Right? Less so in the office. The people who work here and do this work, will tell you, if they’ve done it for a number of years, we’re seeing the same people come in and out and they will acknowledge that some of our practices haven’t worked and so they’re open to new ideas. You know, our policy of not prosecuting people for driving on suspended licenses, for failing to pay tickets. My attorneys came to me and said, ‘Listen, we are overwhelmed in traffic court being glorified debt collectors. These are poor people who aren’t ever going to pay their tickets. So we just stand in court processing.’ So we stopped that process. You know, morally it was the right thing to do. But pragmatically it was the people from inside my office who said we should stop doing that. In the larger community, the narrative is ‘You don’t care about crime.’ Driving on a suspended license is not a public safety issue. You know, gun violence in Chicago is a public safety issue. When I raised the threshold for retail theft in Illinois, in Cook County, I took a lot of heat outside of the office. Inside the office my attorneys knew we were spending a lot of time on retail theft cases cause the threshold was only $300. My attorneys said ‘If I could spend more time on violent crime, that would be great, but I’m spending my time on these low level offenses.’ So when we raised that threshold, and I said, ‘Listen, we’re not going to do this. We’re going to raise it to $1,000, let’s be more in line with our neighboring states.’
Clint: Where was it before?
Kim Foxx: It is in Illinois, under Illinois statute is $300. Just $300. In Indiana, it’s $750 in Wisconsin it’s $2000, in Minnesota it’s $1,000, in Missouri it’s $700. I mean, we share the same threshold as Florida.
Clint: So just to get a sense of what the implications of that are, because I think part of what we think of a lot about on this podcast is the sort of arbitrary nature of what is considered criminal and not criminal. So if somebody were to steal a group of items that were worth $299 and someone else were to steal a group of items that were worth $301 those two people would experience their engagement with the criminal justice system in completely different ways?
Kim Foxx: Exactly. One would have the option of a misdemeanor, which would get them supervision, which would allow for their record. You know, should they complete their term to no longer exist. You don’t have to actively go for the expungement, it’s discharged. The $301 person would be subjected to a felony, could get probation, but that felony conviction has implications on one’s ability to get a job, to get housing, to get scholarships to get into schools. The burden of the felony conviction is very real and onerous, even if it’s for the lowest level of felony, right? A class four felony and a class one felony are viewed the same on an application of “Have you ever been convicted of a felony?” You don’t ever ask the degrees. We ask have you been convicted? So we literally are treating the person who stole $301 worth of merchandise to potentially someone who may have raped someone.
Josie: You know, so much of what you’re saying is not something that prosecutors ever talked about, any prosecutor, really before 2015, 2016 right? I mean, it’s only been a few years, but you were at the forefront of this movement of this progressive prosecutor movement. And I was thinking today that it’s funny because I think of you as just having been an office for a few years, but you’ve actually been there much longer than a lot of other progressive prosecutors. I was hoping you could talk a little bit about your race and the election and the months that were leading up to it. You know, the Laquan McDonald tape came out, I know that November before your March primary, and I remember kind of watching and reporting on Chicago in those months and what was happening was very extraordinary really. And I’d love to hear from you and let our listeners know what your election kind of looked like and how it shifted the paradigm of how we think about prosecutor elections?
Kim Foxx: Sure. I decided to run for the office in the Summer of 2015 and again, I’d spent the previous two and a half years working on criminal justice reform issues, talking about the racial disparities in the justice system, fashioning the county’s response to our overcrowded jail. You know, when I started working for the county board president we have 10,500 people in our jail on any given day. And I was tasked with bringing stakeholders together to get those numbers down. And what I realized in doing that is that the previous state’s attorney was an impediment, right? She wouldn’t come to the table. We could get the sheriff, we could get the county board president, we could get the clerk, we couldn’t get the state’s attorney, right? We had the Supreme Court of Illinois engaged in the conversation. The one person who had the power, again, the power to say no or power to say yes to move this issue, said, ‘Bond issues are not my concern. That’s for the judge to decide.’ And so I realized, you know, if we were going to have any real impact in the justice system, we needed a prosecutor who believed that they have a responsibility for moving reform. And so, you know, it’s funny when you say, you know, on the, at the forefront of this revolution, it didn’t feel revolutionary. It felt actually very lonely because in Chicago all we had known is “tough on crime,” right? The language about it, right? The suburban folks want to know that, you know, the criminal element isn’t coming out into our area. People in the city, we were actually talking to people in the neighborhoods who were impacted by crime and violence. We were actually saying, ‘What do people in these neighborhoods think about the prosecutor?’ And that was important to me. I grew up in the projects. I have family members who say, ‘I don’t trust law.’ You know, ‘I can’t believe you work there.’ And I knew that they didn’t trust it and I had to own and speak to that. So our initial campaign was about this holistic approach, but my audience wasn’t the suburban electorate. My audience were people who were actually impacted by the justice system. So I went and talked to people in neighborhoods about, you know, ‘Listen, we need to do something about bond reform.’ The grandmothers, the mothers who were putting up all this money for their grandsons and sons to get out of jail so that he could keep his job. Like that mattered to them. But people didn’t really pay attention to the state’s attorney’s race. When I was running, they were like, ‘We like Lisa Madigan,’ who was the attorney general at the time. And I said, ‘Well, me too, but that’s not who I’m running against.’ They didn’t even know who their prosecutor was. They didn’t know.
Josie: Right, right, right.
Kim Foxx: So after, you know, three or four months trying to make the case of why holistic prosecution made sense, Laquan McDonald happened. It happened right before Thanksgiving, and the issues of police accountability and the relationship between community and police came to the forefront. Then it was, well, who’s job is it to hold the police officer accountable? It’s the prosecutor’s job, and I give great credit to the activists on the ground in Chicago, whether it was Assata’s Daughters, BYP100, Black Lives Matter, there was this collective movement by young people to say, ‘We know who’s responsible.’ They weren’t marching for me. They were marching for accountability from my predecessor and that changed the whole game. Because I think in as much as I was beating the drum, I was a first time candidate, not particularly well funded, talking about a system that people hadn’t paid attention to in Chicago, perhaps like they had been in Baltimore, in Ferguson and in other places. So after Thanksgiving of that year, the ball game changed. I became a contender and again, not because of my steadfast efforts, I was in it and I was fighting but the efforts of the activists on the ground.
Clint: I’m interested in hearing more about this because obviously your record speaks for itself and you’ve done so much important work in your city for so long. But as you said a lot of what opened up the possibilities of you becoming the DA was the sort of larger Black Lives Matter movement and, specifically in the context of Chicago, the work that young black and brown activists were doing both before and after Laquan McDonald. And I’m wondering if now in your position as the DA, has your relationship to these activists change? Cause you now, as you’ve talked about, you are representative of the institution, the institution that, you know, for so long so many activists and many activists continue to push against. And so I’m curious how, how, if at all, your relationship to activism and advocacy and activists on the ground in Chicago has changed or evolved as you’ve moved from the outside to the inside?
Kim Foxx: Yeah. First I think there’s a reality that I’ve had to accept, you know, the cognitive dissonance almost of having felt like an advocate before and now being the institution, right? And owning what it means to be the institution. Every day we are engaging in practices that are sending large swaths of our community into the justice system, into penal institutions. A penal system that is not meant to rehabilitate them. I can’t fix it on day one. I can’t change it. And so I’m still a part of it, right? I am now, I own it. Right? And whatever well intentioned I am and however urgent I am in trying to find an advocate policies that fix it every day that the fix isn’t in, I’m still part of a failed system. Right? That’s a hard thing. So you asked me, how do you own the name on the door? I put that out there. So I think for the activists and advocates the relationship changes because they are right, I am the system. I don’t shirk from that. My feet should always be held to the fire. I mean, listen a day after the primary, you know, some well respected activists said, ‘Look, we didn’t vote Kim Foxx in,’ right? ‘We voted Anita Alvarez out and we’re going to hold Foxx accountable.’ And so for me, that’s right. I get it. So that relationship has meant that we meet with groups, a couple of different groups on a quarterly basis who hold us to account on what are we doing around juvenile justice? What are we doing around our drug policies? You know, there’s a group that’s been very frustrated with, you know, how we review drug cases that come in. We meet with the sexual assault and domestic violence community on a regular basis. What it meant for me too though was it a lot of what I found that we had these groups who were specialists in what they knew about, that maybe I didn’t know about, was let’s make the data available. Who are we? What do we do? It’s why we released all of the raw data going back to 2011. We will always release our data. And then we did, the first of its kind, Hacking 4 Justice, where we invited activists and advocates and volunteers in the tech community to train them on coding so that they could go through our data and then come to me so they mine our data, they look for what they want to push me on and say, ‘Okay Fox, we’ve gone through your data, we noticed that there are charging disparities in how you charge African Americans in domestic violence situations who are victims versus this.’ And I may not have known about that. Right? I’ve got my policy agenda that I’ve said, but if the advocates on those issues don’t have the data to confront me with, I may not confront it. And so that’s how I’ve tried to bridge those relationships by saying, ‘You know, how you hold me accountable, I expose everything that I am to you, give you the tools to pick me apart, let’s sit at the table and talk about how we find solution to that.’ And I think that’s worked fairly well.
Josie: You know, I think the, the opposite is also true, right? That we’re talking about running for prosecutor and winning a race without having the endorsement or the tacit support of the police unions, of the sort of like law enforcement institutions that have so long kind of dictated who gets these sort of positions. And instead the people that had such a large part in ushering you into office, like Clint said, where these activists, these grassroots activists, and like you said, people who had actually been impacted by the system. So also speaking to the other side of that, which is how does it change your relationship with these bigger law enforcement institutions in the opposite way?
Kim Foxx: Um, I didn’t actively, I did not seek the endorsement from the police union when I was running and I did not believe that the prosecutor was accountable to the police union. I come from a city that has a fraught relationship between the community and law enforcement. I am a part of law enforcement. I have a badge, you know, with my name on it. I am a law enforcement official. The people who live in these communities, you can’t have, I just heard this, someone said this to me earlier, you can’t have safe communities if people don’t trust law enforcement. And public safety requires that we build that relationship. If I am more concerned about having others in law enforcement validate me than the people that I serve, I’m already going to fail. And so, you know, it’s been a tough relationship between myself and the police union. It’s been very difficult. It’s been a very difficult relationship between myself and the police union. And it’s not something that I take pride in, but I don’t owe them anything.
Clint: So you’ve been big on the importance of data generally. And, and you’ve talked a little bit about this, what do, if we can get more specific, what have your initiatives around data looked like and how has this data been collected and how is it released and do you plan on doing it for misdemeanors in the same way that you do for felonies? And I say this in the context of a recognition that so much of what we, there’s so much we don’t know about what is happening in police departments because there’s such a profound lack of data. There’s so much that we don’t know about what’s happening in DA offices. And I’m wondering how you think about the role that data plays in how you go about following up on the sort of promises of transparency that you ran on?
Kim Foxx: Certainly, I mean, when I was an assistant here, I remember when I worked in juvenile, we used to collect monthly statistics on charges that were filed, how many cases went to plea, how many cases were dismissed and we did it by hand on these handwritten sheets. We turned it in at the end of the, like for a monthly stat. And I had assumed when I became the state’s attorney that somewhere someone had kept those numbers, right? And I said where’s our monthly data for juvenile? And someone said, ‘We don’t keep that?’ And I said, ‘Well, yeah we did. I used to fill out the sheets.’ And they said, ;Oh, we don’t have a place for that.’ And that really bothered me.
Josie: They were just throwing them out? That’s a lot of wasted energy.
Kim Foxx: It was a exercise I think to look like we were doing something? But it went nowhere. So I thought to myself, well, if there were a way, and I had made the internal commitment in my transition report to have our office be the most transparent office in the country. I had seen some work that Vera [Institute of Justice] had done in Milwaukee, in the Milwaukee DA’s office and how looking at data helped them look at their charging practices and the like. And I thought, this was before I ran, ‘Oh, I want to do that.’ Right? Because people lie, numbers don’t. You can see trends, you can, you know, we’re not hiding behind anecdote. That’s how you get so much bad policy. And criminal justice is driven by anecdote. And so when I realized that we didn’t have a place for it, I then said we need to hire a chief data officer. So we hired our first chief data officer and then I said what I would like to do, cause we also get a ton of FOIA requests, Freedom of Information Act requests about cases. And I said, wouldn’t it be great if people could just go get it themselves? And my chief data officer, Matthew Saniie, he said, That’s unheard of. It’s unheard of that someone would be able to just go into a DA’s office and pull their information.’ And I said ‘Great. That’s why we’ll do it.’ So what we did was we looked at our case management system. We have a case management system for adult felonies. We do not have one for misdemeanors. And so to your point, Clint, we don’t track misdemeanors because we don’t have the capacity to, and it’s unfortunate and we’re working on it because we have in Cook County, over 200,000 misdemeanor cases that come through every year. And it is an absurd number of misdemeanors. Misdemeanors are direct filed by law enforcement, so we don’t have oversight into them. And we estimate that about 50 percent of those cases get thrown out. And that’s our estimate. And what we would love is to be able to have the data to show which of those cases are being thrown out. We have an idea, so that we can work with our law enforcement partners and say, ‘Perhaps you should not bring these in the first place?’ We can make the case to our county board about funding, why are we funding this? You know, it makes the case to say stop, but on the felony side it was, let’s use our existing data capabilities, our case management system, and how do you turn it from inside out? How do you de-identify, you know, we don’t want to put people’s names and identifying information on there, so we went to de-identifying who the people were, but we wanted to get every case that had been filed, every sentence, we wanted race, we wanted gender. All of those things that we kept, that we had, we had that information and most prosecutors offices do. How do we then turn it to the outside? So we worked with our Bureau of Technology, we have an open data portal in Cook County and it took us about eight months to get the wheels in motion and then we put it up on the open data portal. It was important to me that we went back as far as we could go. So we went back to 2011 so people can compare what we’re doing now and my administration to the administration before me. And it is my anticipation that once you open the door to something, once the light comes in, it is impossible to close it. So I think the data piece is what will outlast me. Maybe you’ll start charging people with $300 felonies again if I’m not here. But I think the public has an expectation moving forward that they have a right to see what’s in the prosecutor’s office and that I’m very proud of.
Josie: So to the question about misdemeanors, I have written about data in Cook County before, so I know how this works, but I know a lot of people listening won’t. So you’re saying that you don’t track misdemeanors, but that means in your office, right? So some other agencies-
Kim Foxx: In our office.
Josie: Right. So some other agency, the police department has the misdemeanor information, is that right?
Kim Foxx: Yeah. So we don’t, right, we don’t have a case management system for misdemeanors. However, our Cook County Clerk’s Office tracks anything that happens in the courts. And so there is a way to get that information and we are currently in ongoing negotiations with the clerk’s office to make that data available. The difference is we don’t own that data. So what we share on the open data portal is the data that we own. We have been pushing the other stakeholders in the criminal justice system to share their data as well.
Kim Foxx: The clerk could make that misdemeanor data available. Again, it’s onerous trying to de-identify folks, but there’s data out there. So where we make our estimates about 200,000 cases a year, that comes from the clerk’s office.
Josie: Right. I just pointed that out to emphasize how in this system, where there’s so much bureaucracy, you’re dealing with over a hundred municipalities at the same time that you’re on the county level and the police department and the court. It just, there are so many ways for transparency to be obscured, but I think what you’re doing, it’s totally right. It’s just so unprecedented to be able to access this data, which just on its face is kind of outrageous. I wanted to ask about some of the challenges that you faced as DA that you weren’t expecting. I have heard you and other progressive prosecutors talk and I’m always reminded that this is just such a hard job. You know, it’s such a difficult job. There’s so much that you’re facing and there are a lot of impediments to making change sometimes, and I, I’m wondering what, what are some of those that you’ve experienced particularly extremely, but also that maybe you weren’t expecting?
Kim Foxx: Sure. I mean, I go back to, I have a really large office, and so changing how we do our practices, it’s one thing for me to say, we’re not gonna charge these cases of less than a thousand dollars and then a court watcher will come back and say to me, hey, you guys are doing that. Right? And it’s like, hey, I put out this memo, this is what we’re doing. Right? It’s one thing to put out a policy memo. It’s another thing to make sure that it’s being followed on the ground. And so I think that’s been the surprising part to me is the disconnect sometimes between what you believe, you know, is happening and what actually is happening. And it’s very frustrating, right? Again, I have to own all of it. And so, you know, changing policy and changing culture, I think there’s this misperception that you come in and you say, listen, I’m, I’m trying to reform how we do our work, that then people either love it or hate it. The people who hate it leave, that’s not true. No one wears a tee shirt that says, ‘I hate what you’re doing.’ Right? People like to keep their jobs. And so trying to ferret out where the dissension may be, but also trying to create an atmosphere where people know what your mission, vision and values are. When I came in, we didn’t have a mission statement, we didn’t have a value statement. What are we anchored by? And so trying to institutionalize what reform looks like. So it’s not a one off policy thing, but we are driven by making sure that there’s fairness and equity, that we’re not judged by convictions. Right? How do you measure someone’s progression in the office if you’re not telling him it’s by the number of years you’ve given someone in prison? You know, people were very much like, ‘Well, well how are you going to measure me?’ And so even having the conversation of what is a good prosecutor? What do we incentivize? Do we incentivize community engagement? Do we incentivize dropping charges where we should? Do ee incentivize the work of our conviction integrity unit? You know, we have 63 men and women who’ve had their convictions vacated because of, you know, the bad acts of a corrupt police officer. We highlight that work at a time where, again, this is an office that was used to heralding the convictions we got, not the ones that we vacated. And so trying to ingrain that because I think it’s really important. There’s the chief prosecutor, but the institution isn’t going to change if the culture doesn’t change and we don’t spend enough time talking about the difficulty of culture change and how if you don’t put the time, money and resources into making sure that the institution as a whole changes, not just the leadership, again, as we’ve seen in this country, the next person can come back in and whatever gains you’ve made our lost.
Clint: And do you have the power to determine what those incentives are for prosecutors? Like is it within your authority to sort of recalibrate the set of incentives and metrics by which we determine the success of what a prosecutor is doing and how do you think of what those metrics should be beyond the sort of standard of what they’ve been for so many years and, and, and that in many places throughout the United States, the standards by which the success of what a prosecutor is, is still measured?
Kim Foxx: Yeah. It’s not only my, do I have the power? It’s my absolute responsibility. We have to figure out what makes a good prosecutor. And so what has been rewarded in the past and it has been people who got long sentences, who could boast about the number of convictions that they got or the people who were elevated. When you looked at our performance evaluation tool, for example, the first question on there was how many trials had you done in the past year? Way on the third page was questions about judgment and ethics. Nowhere on there was about community engagement. Nowhere on there was about, tell me about a case that you felt, you know, we should have done something different or, or the like. So we changed our evaluation tool and it was disruptive, right? Because where people, again, their currency that they’d been told for years is where their value was doesn’t matter anymore. But you also have to replace it with something and trying to figure out what the something is. So we’ve, I don’t know that we’ve gotten it right yet of what is a good prosecution measure. I think we’ve started with convictions isn’t it. I think we started with, there has to be some level of community engagement. I think it is with judgment is also asking have our effort’s been fruitful? If we have a recidivism rate in Illinois of 55 percent, if more than half of the people that we send down are coming back, what is our role in that? How do we measure success when the system continues to fail? So those are really critical questions that we’re asking and still trying to tweak. But what we do incentivize, listen, every other week we send out a newsletter called Our Spotlight. When I was coming up in the office, the only people who were spotlighted were the people who had big trials that got long sentences and they’d have pictures of them standing together like smiling. Our Spotlight now shows, you know, our folks who are volunteering at the homeless shelter, the folks who are engaged in school activities, the service we, it’s very service oriented. It’s on the evaluation sheet. What have you done in terms of community engagement outside of your time in the office? We have people who have never been to the very neighborhoods that they advocate for. How are you the most effective prosecutor you can be if you don’t know the neighborhoods that we serve?
Clint: Or know the history of those neighborhoods.
Kim Foxx: Or the history. And listen, I don’t fault the people who’ve done this because they’ve never been asked to and so that tension, I think it’s really important that it’s not a resistance of, ‘This isn’t who we are because we don’t think we should or could be. This was never asked of us.’ And listen, asking those questions as the first black woman to do this work and always talking about race and equity and challenging our role in the perpetuation of racial disparities in the justice system, calling out systemic racism, using words like that in this place where historically advocates and others have beat this office down with it. There’s a defensiveness that comes that isn’t again rooted in ‘We want to do bad things.’ These people joined this office because they want to, you know, advocate for communities. They want to fight for victims. And when you say to them, ‘Perhaps we’re the problem, we’re the problem, how do we fix it?’ There’s a tension that comes with that.
Josie: Right. So much of this job is resources, right? Resource management. Because again, as you said earlier, and I think actually I remember hearing you talk about this right after you got elected, if we’re not actually addressing the serious harms that are being done in a community because we’re too focused on the tiny things that take up a lot of time but are not actually threats to our safety like, what are we doing? So how do you think about the resources spent on violent crime versus minor crime? I think the year before you came in there were about 6,000 violent arrests that year in Cook County and then I think something like 10 times that many for misdemeanors. And so how have your kind of perspectives changed or shifted on what the appropriate balance is between those two?
Kim Foxx: Yeah, again, I think that’s where data came in handy. So we were able to look in the first year that I got here that our number one prosecuted offense for 2016, the year that we had the most homicides in Chicago in over two decades, we had taken more guns off the street than New York and LA combined, times two, the number one prosecuted offense in Cook County was retail theft.
Kim Foxx: And again, because we had this $300 threshold, and so I would say, how do we justify to a city that is reeling in violence, spending our time on retail theft? And so that has been really helpful for us in framing, if we care about public safety we have to focus our resources to doing that. And I think we have had to come to the realization with shrinking resources of doing less with less, right? We’re going to try to do more with less. That has given us the ability to say, ‘Right, we’re not going to do these misdemeanor driving on suspended license cases is anymore.’ I don’t have the bodies and resources to do that, so we’re going to stop. If you want to absorb and do that work as a municipality, you can. We start asking ourselves, what can we get out of the business of. If we have, you know, an issue with people in drug addiction and we’re continuing to prosecute drug crimes, possession at the rate that we are, knowing that these are folks who are still not getting treatment, who are still addicted, who are still going to come back. How do I justify continuing in the practice? We’re going to stop doing that and so we can then put our resources into violent crime, which is what people care about, but I think we’ve had to, as the pushback comes, say that we’re not going to be everything to everybody. We have to have priorities. My priority is violent crime and then that to me justifies the strategic use of our resources to deal with that and also hold to account the other institutions that really have to step up and do their part. If we have an issue because we don’t have enough drug treatment facilities how is that the criminal justice system’s fault. We’ve closed down mental health facilities in the city of Chicago without regard to what happens to those folks, those people don’t stop having mental health crises. You just bring them to the jail or to the hospital. We have to say, you have to own that. The problem is we started doing more with less, which then absolved the other failing institutions to do their part. And I think it’s been my responsibility to say I’m not going to use the taxpayer dollar to engage in those activities that should be dealt with outside of the justice system.
Clint: Yeah, I was going to ask, clearly the criminal justice system is the sort of backend and represents the final step, so to speak, of so many issues and so many failings of society, uh, on behalf of the folks in the Chicago community over and over and over again. And I’m wondering how you, you know, you are not the superintendent of schools, you are not the CEO of the hospital, you are not the leader of a nonprofit you are not, but the social infrastructure of the ecosystem you are a part of inevitably shapes how you engage in the work you do and the people who are coming into your system. And so I’m wondering institutionally and personally like how you think about what your role is on the preventative side, if you have a role there at all, and how you recalibrate the criminal justice system’s relationship to the sort of broader ecosystem of social structures or lack thereof, that ultimately push so many people into your system in the first place?
Josie: I love that question, Clint, and I think it’s actually so interesting because not only am I interested in how you see yourself as part of the public safety structure, but I think what has contributed so much to the problems that we see in the criminal justice system is that other people kind of project the responsibility of public safety onto these back end actors, much of which are law enforcement and prosecutors, and so how do you navigate that as someone who is faced with that?
Kim Foxx: Yeah, listen, I tell my personal narrative all the time and there’s a reason I do that, right? I grew up in Cabrini-Green, the child of a high school dropout, single mother of two by the time she was 18, of sexual trauma. I’ve witnessed my mother’s domestic violence. We were homeless in high school. I talk about the poverty and the things that I’ve seen. I talk about these things and inevitably, you know, people get excited and, ‘You’re so inspiring Kim Foxx, and you’re a lawyer. Look at you.’ People ask me all the time, how did you make it? ‘How did, how did you make it?’ And I love pushing the question back and I said, the question is based on the supposition that I was supposed to fail, right? And if we are clapping because I made it out of failing schools, poor housing, trauma, all of these failed systems and somehow I was able to be a lawyer because we know the overwhelming majority of people like me end up in our systems, we shouldn’t celebrate me. We should be ashamed of the others who didn’t make it. And so I use that narrative. I use my personal story to say that I have an obligation to not own all of this. It goes both ways, right? You’ll see when crime drops, everybody wants to own it, right? It’s, ‘I did this program’ ‘I did that.’ Prosecutors don’t stop crime. We’re a part of, you know, the backend. I say all the time, I show up after the chalk outline has been drawn. Where is the work to stop the chalk outline from being drawn in the first place? The defendants who we have in our courtroom, a good majority of them have also been victims of violent crime. We’re talking about the same people. And our affection for victims in the prosecutor’s space is this false affection because next week they might be our defendants.
Kim Foxx: And if we don’t recognize that tension and recognize how they got there in the first place, and recognize the failing schools, concentrated poverty, all of the risk factors are what perpetuate this cycle and only look for the solution in the responders, we will always fail. And so I have no problem calling it out. You know, I say I will not talk about public safety without talking about those other issues. It’s not me trying to absolve myself. It’s me rejecting the narrative that the way that we promote public safety and fight crime is through the use of the last point of failure.
Josie: Right, right, right. So this has just been so enlightening and really great to hear. I wanted to ask you what you’re proud of over the past couple of years. I know you’re only about halfway through your first term and you talked about the data, the data work that you’ve been doing, and I know there’s a lot of stuff kind of in process that’s getting started, that you’re working on, but I’d love to hear from you what you’re proud of so far.
Kim Foxx: I’m really proud of a couple things. One, our work on data as you said, I think that is what will outlast me. Um, and I also am optimistic that we will trailblaze for other prosecutor’s offices across the country that it won’t be just, you can expect this in Chicago, I’m hopeful that this will be something that other jurisdictions will see. I’m very impressed with the work that we’ve done around conviction integrity, being unapologetic about the fact that we believe it’s our responsibility to acknowledge past failings, to fix them, apologize for them. I’ve apologized to a number of the men who were wrongfully convicted and then actively work to not have that happen again. So doing sentinel reviews, making sure that we are not engaging in practices that will cause further harm. And then lastly, it’s only been two plus years, but the level of engagement with impacted communities in our office where they feel comfortable and confident enough to talk to me about concerns that they have, not just with people in their neighborhood but about law enforcement, who believe that I’m there on their behalf, that this office can do that. And so it’s an interesting place to be, again, to be in your hometown, to have a job that most people two and a half years ago didn’t really appreciate what it meant, to now believing that you are their lawyer. And sometimes they’re mad at me, right? But still respect the work. And I think we’ve come a long way in this short amount of time to recognizing that the system is imperfect. I’ve never tried to pull the wool over anyone’s eyes and say, ‘Oh, I need to tweak here or there.’ The criminal justice system has been fundamentally broken, so I’ve been honest about that, but have been really fervent in trying to heal the relationship that the system has broken with the community. It’s on us to fix and the response by the community to doing it. That makes me very comforted in many nights of discomfort that I have doing this job.
Clint: Well we are so grateful for you and your time, we know you are incredibly busy so we appreciate you taking time to unpack so much of this really, as you’ve talked about, complex work I think. You know, one of the themes of our podcast that people often try to render two dimensional or flatten or present without any nuance a set of issues that are really complex and necessitate a sort of clear-eyed nuanced set of perspectives in addressing. We appreciate you bringing such thoughtfulness to this conversation.
Josie: Yes. Thank you so much.
Kim Foxx: Thank you and thanks for taking the time to tell them.
Josie: That was Kim Foxx, the State’s Attorney for Cook County, Illinois. Thank you so much Kim for joining us today and thank you for listening to Justice in America. I’m Josie Duffy Rice. You can find us on Twitter at @Justice_Podcast, you can like our Facebook page, find us at Justice in America and subscribe and rate us on iTunes. It always helps. Justice in America is produced by Florence Barrau-Adams, the production assistant is Trendel Lightburn and the location recording was done by David Hall. Thank you so much and join us next week.