Illustration of Kim Foxx by Shane Tolentino
SAO Race Foxx by Shane Tolentino

Should Protesters be Prosecuted? Foxx and O’Brien Differ

Kim Foxx is dismissing certain misdemeanor charges against protesters and prosecuting those charged with felonies. Her opponent says Foxx is allowing crime to “intermix” with peaceful protesters.

In December 2016, Cook County State’s Attorney Kim Foxx was tasked with leading the second-largest prosecutor’s office in the country. The first African-American woman to hold the office, she promised to be a progressive prosecutor, one of a wave of similar district attorneys (DAs) and state’s attorneys across the country. These prosecutors have prioritized reducing mass incarceration and the disproportionate impacts policing has on communities of color by adopting strategies such as reducing sentences, ending the prosecution of certain low-level offenses, and working to end cash bail. Though these moves have now gained mainstream acceptance thanks to years of dedicated work by criminal justice activists, at the time, Foxx’s departure from the traditional hard-on-crime stances and promises of severe punishment was a radical one.

When protests against racial injustice and police violence swept the city this summer, Foxx was one of few prosecutors in the country who issued a department-wide policy to decriminalize protesting. Her office’s policy position drew a distinction between peaceful protesters and “individuals who intentionally cause harm or damage.” For charges including disorderly conduct, public demonstration, unlawful gathering, and curfew violation, Foxx instructed her office to adopt a “presumption of dismissal.” For other misdemeanor charges including resisting or obstructing arrest, assault, battery, aggravated battery to a police officer, mob action, and obstructing identification, there would be a “presumption against proceeding unless body-worn camera footage is available and/or where a police officer is the complainant.” 

The effects of this order on approval and dismissal rates in the State’s Attorney’s office are not yet entirely clear. As Foxx explained in an interview with the Weekly, her office is still waiting to receive data from the Cook County Clerk’s office, which would show what proportion of misdemeanor charges Foxx’s office approved and rejected during the protests. Data from the Cook County State’s Attorney’s Open Data Portal on the few felony charges mentioned by name in the State’s Attorney’s order shows that in the three months since the policy was issued, 4.3 percent of charges for aggravated battery to a police officer were dismissed and 81.5 percent were approved. During that same period, 17.9 percent of aggravated assault to a police officer charges were dismissed and 60.7 percent were approved. It is unclear what percentage of these were accompanied by body-worn camera footage. 

After handily defeating primary challenger Bill Conway, Foxx now faces Republican Pat O’Brien, a former chief deputy state’s attorney, in the general election. The contrast between the two candidates is stark and the race has some of the highest stakes on the ballot. O’Brien, who was endorsed by the Fraternal Order of Police, has criticized Foxx’s progressive approach and labeled her a “pawn” of the “corrupt Chicago Machine.” In a statement emailed to the Weekly, O’Brien said any protest-related dismissals “should be made on a case by case basis, not in a blanket fashion as Kim Foxx has done. By allowing crime and looting to intermix with peaceful protests Kim Foxx is actively undermining the First Amendment rights of the vast majority of protesters who are peaceful.” 

O’Brien is “not part of the movement for criminal justice reform,” Foxx said. “This is someone who blasted my effort to not prosecute peaceful protesters, this is someone who has conflated looters with those who were engaged in peaceful protests. This is someone who’s tried to stoke fear in communities by saying that bail reform makes people less safe. This is someone who has personally wrongfully convicted four Black teenagers…for a murder they did not commit.” In 1986, O’Brien—then a supervisor in the Cook County SA’s felony review unit—successfully prosecuted four Black teenagers for rape and murder. DNA tests cleared all four of the men, who were pardoned in 2002. “And this is someone who is appealing, really, to racist dog whistles to stoke fear,” Foxx continued. “It is reassuring that the public is saying that they want justice reform, but it does not come without a fight. It does not come without the vestiges of the old way, struggling to maintain power and control, and that’s what we’re up against.”

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Activists are pushing Foxx to dismiss all charges that are still pending against protesters, including felony charges leveled against people such as Jeremey “Mohawk” Johnson, who was arrested for aggravated battery of a police officer for allegedly striking one with a skateboard at an August 15 protest. Foxx has thus far declined to do so. “The same way people on the right claim that everybody who protests is a looter, the same way we have to be cautious that when we talk about dropping charges against protesters, we’re talking about people who were peacefully engaged in protest,” she said. “For example, there’s an instance where someone hit a police officer with a skateboard. That’s not acceptable. Even in the frenzy of what’s happening as people are exercising their rights, there is a line.” 

“I wish there was a line with police beating unarmed, retreating civilians,” Johnson said in an email to the Weekly. “To me, that’s unacceptable. Yet I am being pursued and dragged through the legal system with more ferocity than the vast majority of police are pursued for murdering unarmed people, all for allegedly hitting an armed and armored riot cop who sustained no major injuries.” 

Frank Chapman is the executive director of the National Alliance Against Racist and Political Repression (NAARPR), which recently called for prosecutors across the country to drop all charges against activists and protesters. Chapman, who lives in Chicago, said Foxx is a prosecutor whose rhetoric has been “on the side of those who have been torture victims and subjected to violence” by the police. “They’re the ones shooting the guns [and] spraying people with chemicals,” Chapman said. “If there’s any charges to be placed, they should be placed against the police for violating people’s constitutional rights” to protest. 

Still, the mere existence of a policy stating the presumption of dismissal for nonviolent misdemeanor cases puts Foxx ahead of most prosecutors in the nation—the majority of whom haven’t instituted any specific provisions to ensure that protesters do not face unnecessary punishment from the criminal justice system for demonstrating in the streets. “Of the thousands of prosecutors’ offices across the country, I can tell you that there are probably less than ten percent of us who instituted such a policy,” Foxx said. At the opposite end of the spectrum, other prosecutors have adopted a “tough-on-everybody stance,” she explained. “We want people to be able to peacefully exercise their First Amendment rights and the government should not come in to thwart that…Particularly [given] the rhetoric that people have used around the protests over the summer conflating protesting and looting.”

In Minneapolis, where the killing of George Floyd at the hands of police sparked the summer’s nationwide protests, St. Paul City Attorney Lyndsey Olson announced in June that her office would be dismissing charges against nonviolent protesters on a case-by-case basis and look into restorative justice techniques for other charges. A spokesperson for the Hennepin County Attorney, whose jurisdiction includes Minneapolis and whose office only prosecutes felonies, juvenile cases, and serious misdemeanors, said in an email to the Weekly that none of the charges their office brought “resulting from civil unrest following the killing of George Floyd” have been dismissed. 

When the protests began, attorneys at the Minneapolis Legal Rights Center and the Minnesota chapter of the National Lawyers Guild set up a hotline for protesters to report arrests. Between Memorial Day and the first week of July, the hotline received more than 270 calls. Andrew Gordon, the deputy director for community legal services at the Legal Rights Center, said that, as of October, none of the felony cases have been dismissed. “On the misdemeanor side of things, where we’re talking about someone being charged with a curfew violation, trespass, or unlawful assembly, of the seventy-one [misdemeanor] cases we were able to identify and where we spoke to individuals who were charged, all but ten of them were dismissed.”

In New York City, DAs in four of the five boroughs similarly announced they would not prosecute protesters charged with offenses they deemed nonviolent—primarily unlawful assembly, disorderly conduct, and curfew violations. But the DAs haven’t clarified their stances on the hundreds of cases where protesters weren’t arrested, but instead were issued a summons—which are typically handled independently of the DAs, said Jennvine Wong, a Cop Accountability Project attorney with the New York Legal Aid Society. COVID-19 shutdowns resulted in a backlog of many of the cases where protesters were arrested for nonviolent offenses, leaving many still awaiting a hearing months later. “[District attorneys] are continuing to review cases on an individual basis, while remaining silent with respect to the hundreds of summonses that are scheduled [to be heard] in the coming months,” Wong said. “For the most part, if someone was only charged with unlawful assembly, those cases are getting…dismissed.”  In July, the Legal Aid Society and other legal defense organizations in New York demanded DAs dismiss or decline to prosecute all criminal cases stemming from the summer protests.

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We should not be looking at prosecutors as saviors,” said Josh Tepfer, who works as an attorney with the Exoneration Project in Chicago. “When we seek prosecution of police as the answer, we’re seeking to utilize the same flawed system that has created systemic racism to solve [it]…But Kim Foxx has spoken powerfully about these systemic injustices and she’s taken some steps to back up these powerful words.” 

Sarah Staudt, a senior policy analyst and staff attorney at the Chicago Appleseed Fund for Justice, agreed. “State’s Attorney Foxx has been a public voice advocating for evidence-based practices and against fear-mongering and racism. That’s a welcome change from previous administrations, and has been particularly crucial this summer during the frequent protests and the uptick in the homicide rate,” Staudt said. “[Additionally], even among prosecutors who identify themselves as ‘progressives,’ SA Foxx stands alone in providing this much publicly accessible data… It takes a genuine understanding of the importance of accountability and transparency, as well as political courage, to keep and continually add to this data and expand the categories available—even when it means that she may give critics from both the right and left ammunition.”

But that doesn’t mean that advocates are anywhere near finished pushing for continued changes in the State’s Attorney’s Office, especially now that the jail population is growing once again, more people than ever are being placed on electronic home monitoring, and cases continue to be resolved slowly during the pandemic. 

Tepfer said he hopes that Foxx will make a bigger priority of addressing the continued impacts of the police misconduct of decades past if elected to a second term, particularly in the backlog of cases based on the testimony of corrupt Chicago Police officers like Ronald Watts, Jon Burge, and Reynaldo Guevara. “There are 150 or so pending cases that me and other people have asked for her to vacate, that we should have no trust in any of those convictions. Many of those have been sitting on the State’s Attorney’s desk for years now,” Tepfer said. “There have only been thirteen convictions vacated on the Watts cases in the last twenty months or so…. So, there’s a lot of work still to be done. We were off to a good start for a while, but things have really, really slowed down.”

“Ultimately, prosecutors have the power to reduce the harm caused by the over-prosecution, over-criminalization, and systemic racism in our justice system,” Staudt said. “This harm reduction is crucial as a matter of basic human rights. It also helps demonstrate in concrete terms how unnecessary and harmful [certain] policies are. It’s much harder for opponents of abolition to argue that the criminal legal system, as it stands, is necessary when we have prosecutors who are demonstrating that reducing its footprint has positive results, not negative ones.”

As cities across the country contend with their dual and entangled histories of racial injustice and policing, many at the ballot box are questioning the potential and the limits of any prosecutor’s ability—even a progressive one—to truly challenge an unjust and unequal system they are complicit in endorsing and maintaining. Four years into her term, Foxx has accomplished much of what she promised to do when she was elected: she has made more transparent the way her office deals with police misconduct, made progress in dealing with wrongful convictions, reduced the prosecution of some shoplifting cases, worked to reform Chicago’s bail system, and leaned more on diversion programs as an alternative to incarceration. 

Because prosecutors decide what to charge and what not to charge, “the purview of a prosecutor is rather significant,” Foxx said. “We’re a very powerful actor within the system, but we are but one of the actors.”

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Kiran Misra is a writer for the Weekly who primarily covers criminal justice and policing in Chicago. She last wrote about Cook County Jail and COVID-19. Jim Daley is the Weekly’s politics editor. He last fact-checked CPD’s version of events at an August protest.

 

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