EXERCISING FULL POWERS: Recommendations to Kim Foxx on Addressing Systemic Racism in the Cook County Criminal Justice System A Report from Community Partners by Reclaim Chicago, The People’s Lobby, and Chicago Appleseed Fund for Justice Release January 2019 TABLE OF CONTENTS Introduction . 1 Methodology . 2 Goal 1: Reduce Felony Charging and End the War on Drugs . 2-4 Goal 2: Advance Bail Reform . 5-6 Goal 3: Increase Transparency and Accountability . 7 Goal 4: Address Patterns of Gun Possession Cases Where Police Have Frequently Provided Insufficient Evidence to Convict . .. 8-9 Conclusion . 9 References . 10 INTRODUCTION In 2016, Cook County State’s Attorney Kim In this report we evaluate the performance of Foxx was elected in a landslide victory that Foxx’s State’s Attorney Office on four major was widely seen as a referendum on Cook criteria we believe are vital to the advancement County’s criminal justice system. Voters rejected of criminal justice reform and overturning the “tough on crime” stance of Anita Alvarez decades of systematic racism in the Cook as well as her cover-up of the police murder County court system. We look at the role of of Laquan McDonald. Voters chose, instead, felony charging by the prosecutor’s office and a candidate who ran on a platform of holding highlight limited successes in a context of rising police accountable and reversing some of the felony charging by Foxx’s office. How people policies that led to massive increases in the are charged within the criminal justice system number of African American and Latinx people has far reaching consequences not just for incarcerated in Cook County. sentencing, but also for people’s ability to avoid Changing practices in such a large criminal pre-trial detention. We analyze how wealth and justice system is a big order. The People’s class effect pre-trial detention in light of recent Lobby and Reclaim Chicago – which organized reforms by Chief Judge Evans and attempts by a significant portion of Kim Foxx’s electoral Foxx to find alternatives to incarceration. This operation – have been working with Chicago type of research and evaluation is only possible Appleseed to report regularly on Foxx’s with regular, detailed access to data from the progress to reduce incarceration. The following court system, so we evaluate Foxx’s efforts at is a report on the first nine months of 2018 transparency in a court system renowned for data released by the State’s Attorney’s Office. antiquated and incomplete record keeping. The It includes key recommendations for how Foxx most recent data release also provides a clearer can strengthen her decarceration efforts and window into how gun crimes are charged and be a leader in rolling back the failed policies of adjudicated. The data suggest that a “war on over-policing and mass incarceration. guns” is now adding to the “war on drugs” with equally disastrous results. 1 METHODOLOGY The data in this report was gathered primarily entry by attorneys. We also excluded entries from the State’s Attorney’s Office’s public that did not have key fields (a case or defendant data disclosures, available on the Cook identifier, a specific act and section of Illinois law County government website. The data sets violated, or a disposition and sentence listed). used in our analysis were those regarding When measuring data from Attorney Foxx’s “Charge Initiation”, “Intake”, “Sentencing”, and administration, we used all data from events that “Dispositions” that were updated on October 3, occurred in 2017 and 2018. When measuring 2018. The data was analyzed by policy analysts data from Anita Alvarez’s administration, we at Chicago Appleseed and DataMade. When used data dating from 2011-2016. Where examining overall trends we excluded case-level noted, we instead used data from 2015-2016 to data from before 2010 because the quality and analyze Attorney Alvarez’s administration where consistency of data improved substantially post- comparing similar amounts of time is necessary. 2011 due to internal rule changes about data GOAL 1: REDUCE FELONY CHARGING AND END THE WAR ON DRUGS Felony convictions cause devastating incarceration and others moving in the consequences for people of color and the opposite direction. poor in Chicago. A felony conviction is often In most felony cases, police recommend felony a sentence of poverty, with those convicted 1 charges that prosecutors are then given the facing discrimination in employment, housing, opportunity to review and decide to approve financial aid and other vital parts of civil 2 or not approve. The major exception to this society. And, broadly, felony convictions are is drug cases, in which the State’s Attorney’s racially discriminatory, with 33% of adult African Office allows police to file charges directly American males in the U.S. having a felony 3 without felony review. The numbers that are conviction. Felony charging is particularly important in evaluating the effectiveness of insidious because it can negatively affect the decarceration efforts are A) the total number trajectory of a case and prevent less punitive of felonies charged, and B) the percentage of interventions. The Cook County State’s Attorney felonies recommended by police that the is responsible for deciding whether to prosecute State’s Attorney’s Office decides to approve. someone with a felony. Reducing the rate of In this report, we compared the numbers from people charged and then prosecuted with January through September of 2017 to the felonies is a powerful tool to reduce the racist numbers from January through September of and discriminatory effects of felony convictions 2018 in order to evaluate how State’s Attorney and of mass incarceration. Foxx has progressed in the first nine months An important measure of State’s Attorney of their second year in office. We compare Foxx’s efforts to reduce incarceration is the the same months in both years in order to number of felonies charged and the number account for seasonal variation in crime rates of felonies rejected in felony review. In June of and arrest rates. 2018, we released a study of the comprehensive The number of people charged with felonies data released by the State’s Attorney’s Office by the State’s Attorney’s Office from January covering State’s Attorney Foxx’s first full year to September increased from 25,944 in 2017 to in office (2017) plus the previous 5 years. In this 26,289 in 2018. The number of people that the report, we have analyzed the first nine months police arrested and charged with drug felonies of 2018 data released by the State’s Attorney’s or recommended be charged with non-drug Office and found a mixed set of results, felonies also increased, from 27,430 to 28,008, with some numbers showing a decrease in and the subset of people charged with drug 2 GOAL 1: REDUCE FELONY CHARGING AND END THE WAR ON DRUGS CONTINUED felonies increased from 9,392 to 9,612. At the eliminate felony charging for low-level drug same time, the number of people arrested by possession cases. the police whose felony charges were rejected Although her office is still charging a huge by the State’s Attorney’s Office during felony number of felony narcotics cases, Foxx’s review went up from 1,486 to 1,719. The rate of administration has provided some relief in rejection of felony charges by the felony review the form of deferred prosecution programs. process went up from 8.24% to 9.34%. Foxx’s administration has created a larger set There are two important points about these of diversion courts for low level drug offenses numbers. One, the number of felony charges and is diverting more drug cases out of – a key metric that leads to future incarceration the criminal justice system. These diversion – is going up, which is problematic for a State’s programs and specialty courts allow individuals Attorney who promised to reduce incarceration. to complete community based services – The rate of rejecting charges in felony review usually drug treatment – in order to have their is also going up, which is a good sign, but cases dismissed. Foxx has more than doubled that increase is small. Two, the increase in the the percentage of felony drug cases that are number of people charged with drug felonies diverted, both by using existing programs and directly by the police is close to the total by creating new ones. Foxx is diverting about increase in the total number of people charged 8% of narcotics and cannabis cases to diversion with felonies. This shows that in refusing to programs and specialty courts, compared to require felony review for drug charges, the only 5% during 2015 and 2016 under Anita State’s Attorney’s Office is leaving a tool on Alvarez’s Administration8. Foxx’s office was the table that could be useful for their instrumental in creating a new diversion court decarceration agenda. for non-violent crimes when they helped create the Restorative Justice Community In response to our report in 2018, States 9 Attorney Foxx noted that she was hesitant to Court in North Lawndale . So far, Foxx’s office has dismissed at least 1,869 cases because of reduce prosecutions across the board for petty 10 amounts of narcotics, since she had received successful completion of diversion programs. backlash from some law enforcement groups for This still leaves thousands of individuals charged her across-the-board raising the cash amount with possession or delivery of narcotics and necessary to trigger a felony retail theft4 charge cannabis in the traditionally punitive justice in December 2016.