Kim Foxx Aims To Rewrite An ‘Inequitable’ Legal Justice System As Challengers Fight To Topple Her

On a warmer than usual Saturday afternoon in February, just over three weeks before Illinois voters were due to go to the polls to vote in tomorrow’s primaries, Cook County State’s Attorney Kim Foxx made a brief stop at the West Loop office of youth equity organization Chicago Beyond. She was there to meet a room full of Black and Latinx teens from Chicago’s South and West Sides who were attending a youth-organized summit on “healing and reinvestment,” organized by Voices of Youth in Chicago Education. In other jurisdictions, it might be unusual to see the county’s chief prosecutor join a panel with two students of color sharing their experiences feeling unsafe because of police at school. But when it was her turn to speak, Foxx didn’t hesitate.   

“The justice system has been inequitable, unfair, and totally unjust,” she told the students. “So the work that I’ve been doing over the course of the last three years has been about how to rewrite a system that has existed for so long and has been a model of oppression and not a model for liberation.” Snaps rang out across the room. 

Four years after Foxx decisively defeated incumbent Anita Alvarez to be one of the country’s first “progressive prosecutors,” it may still be hard to believe, sometimes, that historically punitive Cook County has an elected state’s attorney willing to call out the failures of the system. With one term under her belt, Foxx says her work isn’t finished: she has more to do to reshape the system and address longstanding inequities. But she faces three opponents who have vociferously criticized her record. They argue that although reform still needs to happen, she’s not fit to do it, and that some of her attempts to transform the system have gone too far. Polls for the Democratic primary conducted in mid-February and released by well-funded challenger Bill Conway showed a tight race: Foxx had the most support at 28 percent, with Conway right behind her at 26 percent, the two other challengers polling in single-digits, and 36 percent of voters still undecided. A more recent poll conducted over March 11 and 12  found Foxx leading Conway by a wider margin, 36.3 percent to 20.3 percent, with 34.2 percent still undecided.  

The numbers might be different if Foxx’s office didn’t face controversy over dropping charges against the actor Jussie Smollett, who allegedly faked a hate crime against himself last year. In a surprise move, Foxx recused herself from the investigation into his conduct in February 2019, because she had had contact with his family. That month, her office charged Smollett with a felony for disorderly conduct and filing a false report; then, at the end of March, all charges against him were dropped in exchange for him forfeiting his bond and completing community service hours. Backlash was swift and intense: Critics said Smollett got a break because he was rich and famous, while Foxx’s office responded that Smollett’s treatment was consistent with a larger pattern of handling low-level offenses with fairness and leniency. A judge eventually appointed a special prosecutor to handle the case, and last month he announced he was reindicting Smollett on six counts, reawakening the controversy just ahead of the election.   

Foxx’s first election cycle was dominated by discussion of incumbent Alvarez’s role in covering up a video of police officer Jason Van Dyke shooting Black teen Laquan McDonald 16 times. This time around, most of the focus is on Smollett and whether Foxx’s handling of the case shows corruption and improper judgment. Foxx admits that she made a mistake in not being more transparent with the public about how her office handled the Smollett case, but she and her supporters maintain that the uproar is a bad-faith and sometimes racist attack aimed at challenging the strides made by the county’s first Black female prosecutor. 

The dynamics of the race exemplify how pursuing criminal justice reform from the prosecutor’s office can produce intense backlash. Foxx is one of the first progressive prosecutors to face re-election, and the outcome is likely to offer lessons for the movement as a whole. 

“If the attackers and those who want to maintain the status quo can keep her from getting a second term, that’s a scary message to those who are currently in the role and for those who are thinking about stepping into this role,” said Jamila Hodge, director of the Reshaping Prosecution program at the Vera Institute of Justice. “We have more than 2,300 prosecutor’s offices across this country. We’re approaching 50 who’ve been elected on a reform platform. So this is just the beginning. And we need people like her to be able to stay in this role so that this movement can have momentum.”

On a macro level, Foxx’s new approach to the office has had a significant effect on the scope of prosecutions in Cook County. An October 2019 analysis by the Marshall Project estimated that under Foxx, the state’s attorney’s office had declined to prosecute roughly 5,000 cases that would have been pursued by her predecessor. A little over half of those—2,800—come from her office declining to pursue charges during the “felony review” process, when prosecutors review information from the police and decide whether to file a charge. Drug cases skip felony review and go directly to the courts after police make an arrest, but the Marshall Project found that Foxx’s office ultimately dismissed about 2,300 drug cases later in the process that Alvarez most likely would not have dismissed. 

A report released in January by local progressive groups Chicago Appleseed Fund for Justice and the People’s Lobby found that, thanks to a combination of dropping more charges and sending more defendants to diversion programs, Foxx’s office sentenced 34 percent fewer people to incarceration per month in 2019 than Alvarez’s office in 2012. The homicide rate—often used as a stand-in for the violent crime rate—was roughly equal during both years. She has also vacated over 100 wrongful convictions, expunged over 1,000 low-level marijuana convictions after the state legalized marijuana, and made years of prosecution data accessible to the public. But some of the policies responsible for driving down incarceration rates—such as bail reform and her decision to lower the threshold for felony retail theft—have been among her most controversial. 

Foxx believes that her tenure has already transformed attitudes toward criminal justice in Cook County. “When I said in 2015 that the criminal justice system was broken, that wasn’t something that was readily admitted by anybody. And now, everyone recognizes the brokenness,” she told The Appeal. “When we talk about mass incarceration or criminalizing poverty, these are not novel concepts.” 

Those changes are obvious even in the rhetoric of Foxx’s opponents. Running on an unflinching law-and-order platform is no longer a strategic move for Democratic candidates. In his introductory video, Bill Conway, a former assistant state’s attorney who served as a naval intelligence officer in Afghanistan and now teaches finance at DePaul University, calls himself a “progressive Democrat.” He pledges to “stop locking up nonviolent people.” He also touts his record of securing convictions against police officers who abused their power when he worked in the state’s attorney’s office. Conway did not respond  to interview requests for this article.

Donna More is a former assistant state’s attorney and assistant U.S. attorney who now works in private practice and received the endorsement of the Chicago Tribune and the suburban Daily Herald. She told The Appeal that she considers herself a “tough prosecutor and a compassionate prosecutor.” More believes that Alvarez, Foxx’s predecessor, took the system “too far in one direction,” making it “convictions over everything,” but that Foxx has taken things too far the opposite way. 

Bob Fioretti, a former alderman and a perennial candidate who has the endorsement of the local chapter of the Fraternal Order of Police, uses perhaps the most traditionally prosecutorial talking points. He told The Appeal that Foxx’s “coddling of violent criminals … shows a jarring and unacceptable disrespect for victims, business owners, taxpayers, and police officers who put their lives on the line to make us safer every day.” But even he is campaigning on his record as a civil rights attorney and talking about how fighting crime requires giving communities more resources.

Yet the candidates have some major points of disagreement on policy. One of those is Foxx’s approach to retail theft. Illinois state law holds that in shoplifting cases, thefts of under $300 worth of merchandise are a misdemeanor, but anything over $300 can be charged as a felony. That’s much lower than the threshold for felony charges in many other states: in Texas, for example, it’s $2,500, and in Indiana, it’s $750. When she assumed office in late 2016, Foxx found that the most common type of case referred for charges through felony review were retail theft cases. (In 2016, Alvarez’s office approved 2,866 retail theft cases for felony charges; in 2015 it was 3,174.) As her first policy, Foxx announced that her office would raise the threshold for felony charges to $1,000 worth of stolen material. Anything less would be prosecuted as a misdemeanor. She framed this move as an intentional effort to divert resources from prosecuting nonviolent shoplifters to addressing gun violence, and as a way to prevent relatively low-level shoplifters from being saddled with felony convictions that can lead to incarceration and affect future job and housing prospects. It’s a significant contributor to the decline in charges under her administration: In 2017, felony review approved charges in just 824 retail theft cases. When she described this policy at the youth summit, Foxx was met with a chorus of snaps and whoops from around the room. 

Other audiences, though, have been less supportive. The Illinois Retail Merchants Association has been opposed to the change from the beginning. And the Chicago Loop Alliance, which represents retailers downtown, blames the policy for recent brazen shoplifting incidents. Conway indicated in an interview with the Chicago Sun-Times’s Fran Spielman that he would return to prosecuting organized retail theft as a felony even if the stolen merchandise is below $1,000, though he would not use felony charges for lower-level individual shoplifting. More says that she would return to analyzing whether to prosecute retail charges as felonies on a case-by-case basis. She’s not worried that this would waste resources that could be devoted to prosecuting violent crime. “A retail theft just doesn’t take that long to work up,” she said, and cleaning up corruption elsewhere in the office would free up resources. 

Another big difference between the candidates lies in how they talk about handling gun-related crimes. Conway has criticized Foxx’s support for Cook County bail reform policies intended to prohibit judges from keeping defendants in jail simply because they can’t afford bail. He supports this policy for low-level crimes, but thinks too many people charged with gun-related crimes are avoiding pretrial detention. “Too often we see gun offenders arrested over the weekend, only to be back on the streets by Monday afternoon,” he says on his website. “If someone commits a crime with a gun, they should stay in jail.” 

Foxx said she disagrees with having such a blanket policy. According to a report last year by Chicago Appleseed and The People’s Lobby, 28 defense attorneys interviewed relayed that Foxx’s office has been more flexible than that of her predecessor in addressing “unlawful use of a weapon” (felony gun possession) charges, and more willing to consider alternatives to incarceration based on the circumstances. For the report’s authors, this is a positive, since the office’s approach to gun charges—and not just crimes like drug charges—needs to be addressed to lower mass incarceration. But it can be hard to communicate about that to a public fearful of violence. 

“You can’t talk about guns in sound bites,” Foxx said. ”If you tell a 9-year-old who just saw a friend of his or heard about a friend of his getting killed ‘This [gun] will keep you safe,’ that kid is making a choice that makes absolute sense for him. And the question that we have to ask ourselves is, do we treat him the same way as if someone was hell bent on committing violence? We have to have thoughtful, nuanced conversations around this. As a politician, it’s hard for me to do that in 30 seconds.”

Unlike many of the youth organizers who helped get her into office with a campaign against Alvarez, Foxx isn’t a prison abolitionist. She’s serious about diverting resources from low-level prosecutions to tackle violent crime, and felony charges for unlawful use of a weapon have increased during her administration. At times, she has received criticism from the left for not moving fast enough on her promised reforms. For example, although her office has often responded quickly to drop charges for some wrongful convictions when cases catch the attention of top staff, other wrongful convictions proceedings still drag on in the courts. In several recent cases, the state’s attorney’s office has dropped charges against a wrongfully convicted individual but then has opposed that individual’s efforts to obtain a certificate of innocence; in at least three such cases, a judge has sided against the office and granted the certificate.

Also, in the current system, drug cases—still the office’s most commonly charged offenses—do not go through the typical felony review process but are instead filed directly by police. A Chicago Appleseed report from early 2019 found that this method often leads to overcharging, which can make access to diversion programs difficult and can influence defendants to plead guilty, even if the state’s attorney’s office eventually reduces the charges. Chicago Appleseed recommended that Foxx’s office implement felony review for drug cases; so far, she has not committed to doing so.  

Chicago’s political powers that be have mostly lined up behind Foxx’s bid for re-election. She easily secured the Cook County Democratic Party’s endorsement in the summer and has the backing of her former boss, Cook County Board Board of Commissioners president Toni Preckwinkle, as well as Chicago Mayor Lori Lightfoot, a Preckwinkle foe. Governor J.B. Pritzker, both of the state’s U.S. senators, and five U.S. representatives from the area have all endorsed her. Labor is also on her side, including two local SEIU chapters, the Teamsters, and a local progressive powerhouse, the Chicago Teachers Union. Foxx’s strong relationship with the local Democratic Party has obvious advantages for her campaign: An incumbent with the party’s backing hasn’t lost a state’s attorney primary in decades (Alvarez, notably, didn’t get the endorsement in 2015), and party support helps bring in money. But her opponents have cited her connections as evidence that Foxx is part of Cook County’s political machine. In their view, the fact that Foxx was willing to drop charges against Smollett emphasizes the fact that she’s too much of an insider. 

Conway, Foxx’s most prominent opponent, has attacked her for accepting money in 2016 from a fundraiser by Alderman Edward Burke—who’s now facing federal corruption charges. He says Burke’s money influenced Foxx’s office to later approve a property tax settlement with Burke. Conway has pledged not to take any money from property tax appeal lawyers. But he doesn’t need money from any lawyers or the Democratic Party because his father, William Conway, is a founder of the Carlyle Group investment firm and has thus far donated at least $10.5 million to his son’s campaign. The younger Conway may be a political newcomer with  a much smaller list of endorsements—he’s backed by the veterans’ organization VoteVets and a handful of aldermen—but his stuffed war chest allows him to blanket the airwaves with ads. He has made removing outside political influence a pillar of his campaign, but he has faced scrutiny for relying on his father’s money, especially since the Carlyle Group invests heavily in military equipment around the globe. 

When Foxx ran four years ago, her efforts were boosted by the efforts of young Black organizers who, in a combined effort from groups like Assata’s Daughters, Black Youth Project 100, and more, formed a #ByeAnita campaign to get Alvarez out of office. This time around, their presence in the race has been less prominent. “There’s a lot of folks that did #ByeAnita that are far more comfortable getting a politician out than they are getting one in. They don’t view electoral politics as their favorite tool,” says Amika Tendaji, a local organizer with Black Lives Matter Chicago. But many activists are still supporting Foxx this time around, and Tendaji is canvassing for her with groups like United Working Families and SOUL in Action.  “Kim Foxx has not necessarily been the super progressive that I dreamed of, but Conway would definitely be worse,” she says. “I worked really hard on exposing the Laquan McDonald cover-up and convicting Jason Van Dyke. We’re not interested in the Fraternal Order of Police gaining any ground back.” Tendaji has appreciated that Foxx has been willing to meet with groups like Black Lives Matter, even if they don’t always agree.  

Foxx speaks about criminal justice issues with nuance and compassion and often talks about her own experience growing up in Chicago’s public housing, dealing with homelessness, and surviving sexual abuse. When she announced the first wave of marijuana conviction expungements, Foxx spoke openly about how her mother had used marijuana regularly to manage mental health issues. “She’s very open about having more in common with the people accused by her office than the lawyers that she supervises,” says Hodge of the Reshaping Prosecution program. “And so her vulnerability, that proximity, to me is how you pave the way for someone like Chesa Boudin to be elected [as district attorney] in San Francisco.”