Those who want to reform the criminal justice system are placing their bets on a new wave of prosecutors who have been voted in around the country. Elect a district attorney who will pursue fewer cases, the reasoning goes, and fewer people will be drawn into jails and prisons.
In 2016, Kim Foxx unseated an incumbent in Cook County, Illinois, vowing to transform the nation’s second-largest local prosecutor’s office and to bring more accountability to shootings by police while also reducing unnecessary prosecutions for low-level, non-violent crimes.
Cook County State's Attorney Kim Foxx at her inauguration party Tuesday, March 15, 2016. | Photo by Stacey Rupolo
One year into her term, Foxx did something no other state’s attorney had ever done: she released six years of data outlining what happened in every felony brought to her office, offering an unprecedented view into the decision-making of prosecutors and its impact.
Our analysis of this data provides the first detailed look at the more than 35,000 cases that flow through Foxx’s office every year. We found that since she took office she turned away more than 5,000 cases that would have been pursued by previous State’s Attorney Anita Alvarez, mostly by declining to prosecute low-level shoplifting and drug offenses and by diverting more cases to alternative treatment programs. Foxx has not finished her term, so these trends could yet change.
Prosecutors’ first chance to decline to bring charges comes during a process called “felony review.” This chart depicts felony arrests by policeThese are arrests referred to prosecutors by police for felony charges., which decreased since Foxx’s election. How many of these cases did her office prosecute?
During Foxx’s tenure so far, prosecutors have pursued a smaller share of cases than under the previous state’s attorney.
To quantify the number of people affected (and account for the drop in arrests), we modeledRead about our approach by clicking here.what might have happened had Foxx’s office continued prosecuting cases at the same rate as her predecessor.
The difference between the two lines approximates the roughly 2,850 cases that likely would have been pursued under the previous administration (about a 6% decrease in the caseload)About 44,000 cases went through felony review and were subsequently charged since Foxx’s term began in December 2016. Our analysis excludes misdemeanors; while the state’s attorney’s office handled 400,000 misdemeanor cases in 2017, the data is not released publicly..
Further analysis shows that Foxx’s office is exercising discretion in the way it handles drug cases too, which skip the felony review process and go directly to courts. We estimate that Cook County prosecutors have dismissed an additional 2,300 drug cases that, under Alvarez, would have otherwise gone to trial—or ended in a plea. The defendants in some of these cases instead have been diverted to treatment and counseling that led to their charges being dropped.
When Foxx was campaigning for office, Alvarez was under fire for her handling of several high-profile police shootings in Chicago, most notably the killing of teenager Laquan McDonald. Foxx unseated her in the Democratic primary and won the general election with 72% of the vote. In trying to implement her policy changes, Foxx has faced resistance, especially from police unions. She’s found herself embroiled in several controversies of her own making—most notably over the handling of the Jussie Smollett case. A Cook County judge has appointed a special prosecutor to look into how Foxx and her deputies dealt with, and dismissed, the case against the actor who starred in “Empire,” who was accused of staging what he reported as a hate crime attack. Our analysis of Foxx’s policies offers one quantitative way to evaluate what concrete differences progressive prosecutors can make, particularly because policy decisions have historically been, as Foxx said in a recent interview, “driven by anecdote.”
We started by focusing on prosecutors’ first opportunity to influence a case: felony review.
After an arrest, police bring a case to felony review for prosecutors to decide whether to pursue it as a felony.
After an arrest, police bring a case to felony review for prosecutors to decide whether to pursue it as a felony.
Felony charges brought by prosecutors set off a cascade of effects on the accused’s life, family and community. Bail is set (if it’s not paid, they’re jailed). Jobs are lost. Even without a conviction, the charges might appear in background checks, making it more difficult to find employment and housing.
Foxx campaigned on the costs of over-criminalizing behavior. “We can’t keep trying to scare people into believing that the solution to our ills is locking everybody up and we’ll all feel better and be safer,” she said in arguing for treatment programs, community-based initiatives and prevention.
A month into her term, Foxx announced her office would stop prosecuting shoplifting as a felony if the stolen goods were worth less than $1,000, a threshold three times higher than under the current state law.
When Foxx began her term, shoplifting was the second most frequent offense in her office’s caseload. Today it’s dropped to eighth. While theft cases of smaller value items are still being prosecuted as misdemeanorsCompared to felonies, misdemeanors are less severe offenses that carry sentences of less than one year in jail. Felonies are punishable by longer sentences. The consequences of a felony conviction are broader, depending on the state, including loss of voting rights, public housing and employment opportunities., the policy has effectively eliminated thousands of felony cases. Not only is Foxx charging a smaller share of shoplifting cases, but police are bringing fewer arrests for felony review.
In response to Foxx’s policies and the resulting lower prosecution rates, an association of suburban police chiefs and Chicago’s police union, the Fraternal Order of Police, issued a vote of no confidence in Foxx and demanded her resignation in April. The union wrote, “we cannot ignore the choices you have made and the impact it is having on our ability to reduce and deter criminal activities,” charging that Foxx’s policies worsen crime rather than deter it. In a press conference following the union’s vote, Westchester Police Chief Steve Stelter bemoaned the “hoops we have to go through to try to get a felony charge, and most of the time it’s not approved.” Foxx’s policies are allowing criminals “to go back on the street and commit their crimes again,” he said.
Martin Preib, second vice president of the Chicago Fraternal Order of Police, echoed Stelter’s frustration in a recent interview. “The general sentiment is that they will not be punished for crimes. There’s an overall increase in emboldening criminals across the board,” Preib said, adding “The guy who shoots a guy one minute might be a shoplifter the next.”
At the same time, police are angry about the way Foxx’s office has dealt with officer misconduct, particularly the exonerations of dozens of people arrested on drug charges by corrupt cop Ronald Watts, who later went to prison himself. The union has called for a special prosecutor to handle any cases of police misconduct because of its members’ distrust of Foxx.
The relationship between Foxx’s policies and how crime has changed in Cook County is difficult to quantify. When she was elected, the city was in the midst of a spike in shootings that brought it nationwide attention. Since then, Chicago has experienced a sustained drop in shootings, and police are bringing fewer arrests to prosecutors. Last year, shootings and murders in Chicago both decreased, and shootings were down 14% this year through August. According to a study released by Loyola University, reported crime in Cook County has been trending downward overall for decades.
Foxx said her office had some clashes with local police, especially as it began to change prosecutors’ charging standards rather than, as she put it, rubber-stamping police decisions. Her office developed a guidebook for felony review to clarify new expectations for which cases it would charge. In a recent interview, she pointed to her prosecutors’ improved conviction rate as they started to drop weak cases earlier in the process.
Despite the blowback from police unions, Foxx’s policies have been praised by community activists and even defense attorneys. In June, Amy Campanelli, the public defender of Cook County, wrote in an op-ed in the Chicago Tribune, “Never before have we had a prosecutor prioritize resources for more serious cases, while diverting less serious cases—until Foxx.”
For years, unabated gun violence has been the backdrop of Chicago politics and gained national attention. Foxx campaigned on shifting prosecutors’ focus to gun violence amid a spate of killings. Two and a half years later, approval rates and felony prosecutions are trending down for nearly every offense category. Gun charges are an exception. They are the only major category to increase under Foxx.
Compared to 2016, police make 40% more felony arrests each month for unlawful use of a weapon, which often amounts to possession of a gun without a permit. In the first half of 2019, they comprised 25% of cases prosecuted by Foxx’s office after felony review. The year before she took office, they were less than 15%.
When asked about the increase in gun possession charges, her office responded that it comes with steadily increasing conviction rates as the administration prioritized stronger cases, citing meetings with police departments, trainings and the office’s newly created Gang and Complex Homicide Unit.
While Foxx was able to adopt policies to change how gun crimes or shoplifting are addressed, she has had far less leeway when it comes to the most prevalent crime in Cook County: drug cases.
Unlike most cases, police determine initial felony drug charges without prosecutors’ approval.
This processThe reasons cited for lack of felony review for drug cases are varied. The sheer volume of drug cases would likely overwhelm felony review resources.underscores one major impediment to reducing felony prosecutions: drug cases represent the bulk of Cook County’s caseload.
Charge Severity
Foxx campaigned on “end[ing] frivolous prosecutions of non-violent drug offenses,” and we examined drug cases to see whether prosecutors used their discretion after police filed initial charges. Unlike felony review, where we saw charges decrease, we tracked the opposite trend for drug cases: is Foxx dismissing more cases after charges are filed? If dismissal rates rise, fewer cases go to trial or end in conviction.
In the 9,500 cases each year of low-level drug charges, often simple possession, Foxx has dismissed a slightly higher%age than Alvarez.
Class 4 drug felonies (up to 3 years in prison), commonly low-quantity possession
For less frequent, more severe drug charges (trafficking, dealing, production), about 4,000 a year, dismissal rates have nearly doubled.
Class 3 to X drug felonies, commonly dealing, manufacturing, conspiracy
The state’s attorney’s office said that its alternative prosecution programs, where people are directed to community-based services and treatment, result in more people whose cases end up being dismissed. Alternative prosecution rose about 8% during the first two years of Foxx’s term, according to a July report.
To translate this shift in drug prosecutions into human terms, we compared Foxx’s handling of drug cases with what likely would have happened had Alvarez’s policies continued under Foxx. We estimate that Foxx has dropped 2,300 cases that would have gone to trial or ended in a plea under the previous state’s attorney.
The first half of Foxx’s term is a case study. Prosecutors represent just some of the many actors in the criminal justice system, and a reform-minded state’s attorney must consider opposing forces, from legislators, to police, to judges, to community members.
Some of the actions of Foxx’s office’s are not quantifiable, such as her support for bail reform and marijuana expungements, as well as improved relationships with public defenders.
Measuring the impact of her policies can help set expectations for what’s possible in transforming the criminal justice system. The results in Cook County point to the potential opportunities in other communities, as well as the need for leaders to open up the black box of data for public accountability.
Additional data analysis by Walter Zielenski.
We began this project with a simple question: what is the human impact of electing a prosecutor who runs on reform?
To try to assess this, we focused on two measures—charges and dismissals—that we can examine through the unprecedented case-level data published regularly by the Cook County State’s Attorney’s Office.
We didn’t want to just compare the number of cases before and after Foxx’s election, because that would not account for any differences in crime in Cook County or the change in the number of arrests.
Instead, we wanted to ask a hypothetical question: Had Alvarez been re-elected and continued her policies, what would be different? We start with the most important decision point for prosecutors, whether to take up a case presented by law enforcement. To answer this question, we used the rates at which cases for each charge were prosecuted during Alvarez’s term and applied them to Foxx’s caseload.
A similar approach was applied to drug cases. We examined the rate at which drug cases did not conclude in a trial or conviction. Charges were aggregated to a case level: if a case had three drug charges, we evaluated whether all three were dismissed (if one charge concluded in a conviction, the case was categorized as a conviction). We also controlled for charge severity, examining case dismissal rates for felony classes and comparing averages during Foxx’s term versus Alvarez’s.
Calculating the Effect of Changing Felony Approval Rates
First we’ll take the number of retail theft cases under each DA’s term.
The benefit of this approach is that it focuses on how cases are handled by prosecutors, regardless of whether arrests have changed. Essentially, we’re adjusting for changes in police activity.
A weakness of this approach is that it does not account for how Foxx’s policies affect arrests referred for prosecution. The number of shoplifting cases brought by police for felony prosecution has dropped dramatically during Foxx’s term, likely due to her very public stance that shoplifting cases will not be charged if the value of goods is under $1,000. The logic goes: why would police bring a case to prosecutors if most of the time it won’t be charged? This feedback loop between police and prosecutors complicates our ability to quantify the impact of Foxx’s policies, and it suggests that our analysis is undoubtedly conservative.
Let’s figure out how conservative it is. Here are shoplifting cases in Cook County over the past eight years.
After Foxx was elected, the number of shoplifting cases brought by law enforcement every month decreased from 320 to 190. Assuming arrests (and crime) hadn’t changed for shoplifting, that means 130 more shoplifting cases would likely have been brought for felony review. Alvarez was charging about 85 to 90% of these cases, and after applying this approval rate, we estimate that about 3,300 retail theft cases were eliminated from the state’s attorney’s office from December 2016 to June 2019, about 5 to 10% of the office’s actual felony caseload.
As with most data work in criminal justice, one should approach any analysis with a healthy amount of skepticism. Nearly all data is collected by humans, entered by prosecutors and prone to errors.
When it comes to understanding a case, the only thing we have to go by is the state’s attorney’s office’s classification of the charge. Most cases, however, are difficult to fit into one category, and the office says it uses the case’s most severe charge levied by police, which might not actually reflect all of the facts of the case.
The other piece of data we’re missing is whether each case reflects individual people. Ten cases of retail theft, for example, might involve one accused person. This is important to know if we want to quantify the footprint of the criminal justice system. Understanding the extent of the revolving door of individuals who are being arrested and charged only to have their cases dropped would be an important measure of reform. The state’s attorney’s office declined to release person-level data out of concern for personal privacy.
Our approach is based on some assumptions. Rather than look at whether charges increased or decreased, we want to estimate whether Foxx is declining to charge cases that otherwise would have been prosecuted by the previous state’s attorney’s office.
We assume that Alvarez’s office would have continued its rates for filing charges. This could have proved wrong. Alvarez could very well have changed her posture on felony review for various charges, which means the gap between Foxx’s office and Alvarez’s would be narrower.
To arrive at the rate Alvarez office would have charged Foxx’s caseload, we average Alvarez’s monthly approval rates, by offense, from May 2014 through Nov 2016.
The rate is also an average of monthly approval rates, by offense. We could have used a rate that was calculated on the entire time period rather than average months. Or we could have only used the average from the last six months of Alvarez’s term.
When it comes to estimating the impact of Foxx’s policy on retail theft, we assume that arrests referred by law enforcement (and therefore crime) are constant. Crime, however, has been decreasing in Chicago, and we expect that the roughly 300 retail theft cases per month from 2015 would have dropped by now. Our estimate, for simplicity, assumes a constant flow of cases.
We think these are reasonable assumptions to assess the impact of Foxx’s policies, but they are not perfect. We stress that there will be no flawless approach to measure a prosecutor’s term.
The data released by the Cook County State Attorney’s Office is one of the first publicly available, case-level datasets for local courts in the nation. There are few best practices available when it comes to analyzing such a dataset, especially considering the decades of research devoted to measuring other parts of the criminal justice system like law enforcement or prisons.
The aim of this project was not to find an absolute figure for a progressive prosecutor’s impact, but rather a rough estimate of how Foxx’s policies affect the people of Cook County.
The state’s attorney’s office has its own metric for calculating “felony approval rates,” but we did not rely on that calculation, because we found that a fair number of cases that were not marked approved went on to be prosecuted after all, as well as the obverse. We instead used the number of cases that had charges filed, regardless of the outcome listed for felony review.
Our analysis did not examine changes in sentencing practices under Foxx, but other organizations have looked at that. A July report by local advocacy organizations Reclaim Chicago, The People’s Lobby and Chicago Appleseed Fund for Justice found that fewer sentences in Cook County result in incarceration than in years past. According to the report, “The number of people given sentences of incarceration decreased from 12,262 in 2017 to 9,941 in 2018, a decrease of 2,321 individuals or nineteen%.”
