The Race to Replace Kim Foxx

Last spring, Kim Foxx stepped to the lectern at the City Club of Chicago to announce that she would not seek reelection after eight tough years as Cook County State’s Attorney.

“I didn’t set out to be a career politician,” she told the audience. “I had a mission and agenda that I knew I wanted to achieve, which was fairness, justice, and equity. I feel that I have done that.”

Foxx is the first incumbent to not seek reelection for the county’s top prosecutor’s job in sixteen years, opening the field up for would-be successors. In the months since her announcement, several candidates have jumped into the race, including Democrats Clayton Harris III and Eileen O’Neill Burke, as well as Republican Robert Fioretti and Libertarian Andrew Charles Kopinski. 

Although Election Day is not until November 5, the rapidly approaching Democratic primary on March 19 likely holds the keys to the office, as no Democrat has lost the race for Cook County State’s Attorney since Richard “Dick” Devine won his first election for the job in 1996.

While the two Democratic candidates have important differences in their experiences and campaign styles—O’Neill Burke has relied on tough-on-crime rhetoric, while Harris, like Foxx, stresses prosecutors’ longstanding obligation to champion the rights of both victims and defendants—the policy differences between them are slighter than their styles might suggest. Indeed, their positions are a reflection of how far Foxx was able to shift the terms of debate about public safety and the criminal legal system in the years since she took office.

Foxx’s 2016 election was momentous not just for Chicago and suburban Cook County,  but also for the nation. She won the race by a wide margin—becoming the first Black woman to hold the position—after activists and voters chose to oust incumbent Anita Alvarez after two terms. Alvarez was heavily criticized in the run-up to the campaign for taking more than a year to charge Chicago police officer Jason Van Dyke for the killing of seventeen-year-old Laquan McDonald in 2014.

Her election also helped catalyze a movement that has since swept up other major prosecutors’ offices in the country, including Larry Krasner in Philadelphia, George Gascon in Los Angeles, Chesa Boudin in San Francisco, and Kim Gardner in St. Louis. That movement’s core aim was to use the considerable amount of discretion afforded to prosecutors in the criminal legal system to turn the tide against mass incarceration after five decades of war-on-drugs policies that did little to curb drug use or significantly deter violent crime.

During her time at the helm of the country’s second-largest prosecutor’s office, Foxx has largely delivered on her promises to make sweeping reforms. She has diverted many nonviolent offenders away from the criminal legal system and toward treatment and other non-carceral programs. She was also a vocal proponent of ending cash bail, which was eliminated in 2023 after the Illinois Supreme Court ruled that provision of the SAFE-T Act constitutional, and of legalizing cannabis, which began in 2020 after a state law was passed in 2019.

Foxx also took seriously her role in holding police accountable for their misdeeds. Since she took office, her reorganized conviction and post-conviction integrity units have exonerated more than 200 people, the most out of any county in the country, according to the National Registry of Exonerations. Many of those convictions were tied to disgraced Chicago police officers, such as Commander Jon Burge, Sergeant Ronald Watts, and Detective Reynaldo Guevara. In July, her office released a “Do Not Call” list of police officers who will never be called to testify in criminal trials. Since its release, that list has expanded to more than 320 names. And although her office declined to prosecute the officers who shot thirteen-year-old Adam Toledo and twenty-two-year-old Anthony Alvarez, Foxx has pursued criminal cases against other cops involved in shootings.

For this—as well as her handling of the high-profile Jussie Smollett case—Foxx has drawn intense criticism from the right, especially from the Fraternal Order of the Police Lodge #7, the largest police union in Chicago. Myriad conservative commentators have said that her policies coddle criminals. But despite a post-pandemic bump in violent crime, shootings have fallen by more than 30 percent from the time she took office in 2016 to her last full year in office in 2023, according to city data.

Currently, O’Neill Burke has a significant fundraising edge. According to Illinois Sunshine, she has some $376,000 more cash on hand than Harris with less than a month to go before the primary deadline. (Early voting started February 15.) Her major donors include medical malpractice law firms Salvi, Schostok & Pritchard and Cooney & Conway, as well as several executives from Citadel Capital, the hedge fund run by conservative billionaire Ken Griffin. Harris’s major backers include unions like SEIU, CTU, and the Teamsters and the civil rights law firm Loevy & Loevy. 

With just weeks to go until the primary, Foxx has not endorsed either Democratic candidate. Harris has said he would accept Foxx’s endorsement if offered, whereas O’Neill Burke categorically rejected seeking the state’s attorney’s support at a forum earlier this month. 

O’Neill Burke has received endorsements from the Tribune’s Editorial Board, several retired judges, and current mayors, aldermen, state senators and representatives. Harris has the backing of Cook County Board of Commissioners president Toni Preckwinkle, who was a political mentor to Foxx, and the Cook County Democratic Party, as well as numerous state and local politicians, advocacy groups, and faith leaders.

Harris, who is a lecturer at the University of Chicago’s Harris School of Public Policy, where he teaches a course on policing and race, among others, started his career at the Cook County State’s Attorney’s Office (SAO) in 1999, fresh out of Howard University Law School. 

During his time as an assistant state’s attorney (ASA) under Dick Devine, Harris handled traffic and narcotics cases and criminal appeals. Harris said he and other prosecutors in his office strongly believed in the mission of what they were doing.

“The folks that I worked with had a true desire to adhere to the mission of the office, which was to be the victims’ advocate and to truly do justice,” Harris told the Weekly. But he said he felt compelled to leave the SAO after four years because of the racial disparities in prosecutions. “I remember being in court and just looking behind me and seeing men who look like me in there,” he told the Hyde Park Herald.

As a Black man and a resident of Washington Park, Harris said he brings a different understanding of the racial dynamics in prosecutions and gun violence.

“My experience with the justice system is one of being a Black man in America,” Harris said at the candidate forum earlier this month. “I have been pulled over before, for no reason, on pretextual stops.…What you have to understand if you’ve never been pulled over before, for no reason, is the humiliation that comes with that.”

We have to “make sure that there’s not only equality, but equity in the way that the laws are being adhered to and are administered,” he added.

Unlike Harris, who later worked for Governors Rod Blagojevich and Pat Quinn downstate in Springfield and also in the private sector for the Illinois International Port District and Lyft, O’Neill Burke has spent her entire three-decades-long career enmeshed in Cook County’s legal system, where she worked every side of the bar—prosecutor, defense attorney, and judge—before stepping down in 2023 to run for the state’s attorney position.

In 1994, three years into her career as an ASA, O’Neill Burke prosecuted and won a conviction of an eleven-year-old Black boy for the murder of his elderly white neighbor. The conviction was overturned on appeal when it emerged that the detective in the case had coerced two other children to confess to a crime they did not commit. DNA evidence pointed to a thirty-six-year-old man who was eventually convicted of the murder. 

At the forum, Harris seized on O’Neill Burke’s role in the case. “She wrongfully convicted a ten-year-old child,” he said. “This is the whole reason why we have a conviction review unit. We have to change the culture.”

O’Neill Burke defended her role, saying, “No court has ever questioned my conduct in that case, or in any case. The only allegation about my conduct in that case emerged thirty years later from Mr. Harris and his allies.”

Both she and Harris support a new piece of state legislation introduced by State Sen. Robert Peters that would require lawyers to be present whenever children are interrogated by police. (Currently, the law only mandates a lawyer for children under fourteen when they are being questioned about murder or sexual offenses.)

After ten years at the SAO, she became a criminal defense attorney in 2001. She then was elected as a circuit court judge in 2008 before winning election to the appellate level in 2016.

At the forum, Harris questioned O’Neill Burke’s competence as a judge, saying that during one six-year period, seven of her rulings were later overturned. “Your judgment is in question, and it needs to be addressed,” he said.

In a statement to the Weekly, Don Black, O’Neill Burke’s campaign manager, disputed this charge.

“As a judge, she made nearly 5,000 decisions and was rated as fair and recommended by every bar association in the state,” he wrote. “This is nothing more than a desperate attempt by Clayton Harris to manufacture statistics to smear a woman’s public service and distract from his own record as an anti-union corporate lobbyist.”

Neither candidate promises to completely jettison the major reforms ushered in under Foxx—mostly they propose to tinker around the edges while solving managerial issues like hiring and retention and boosting low staff morale.

In conversations with the Weekly, both candidates promised to build upon Foxx’s use of diversionary programs like the restorative justice community courts, of which there are currently only three operating in the city, with less than 100 first-time nonviolent offenders participating in the programs per year.

Harris told the Weekly that as a public policy professor, he looks for data on what works and what doesn’t and that, empirically speaking, the restorative justice courts do. “The recidivism rate of future crimes committed by individuals [is] minimal, at best,” he said.

A report by the Chicago Appleseed Center for Fair Courts released this week found that participants who complete the restorative justice program have a much lower rate of committing another crime (thirteen percent) than similar individuals who went through the traditional court process (sixty-five percent).

O’Neill Burke also commended Foxx’s use of restorative practices and called for expanding upon them, writing in the statement to the Weekly: “I want to create an entire bureau of restorative justice where we pull veterans courts, mental health courts and drug courts all under one roof so they can collaborate and improve each other.”

However, Foxx came in for the sharpest criticism from the candidates over staffing shortages.

“Right now, the state’s attorney’s office is woefully understaffed,” O’Neill Burke wrote in the statement. Last year, a CBS News investigation revealed that more ASAs walked off the job in 2022—136—which was more than at any time in the previous decade.

O’Neill Burke said that there are currently 160 vacancies in the felony trial division. 

“What means is that basic things are not getting done,” she said. “Women can’t get orders of protection because there’s no state’s attorney to process the paperwork. Defendants are sitting in custody for years, waiting to go to trial. So the system is just not working for people, and some of that is caused by mismanagement.”

In an email to the Weekly on March 7, a spokesperson for the SAO said the entire office of almost 1,300 employees has a total of 160 vacant positions, not the felony trial division alone. They added that there are 35 ASA positions currently vacant and that they have an incoming class of bar-takers that are lined up to fill many of those positions.

To lessen the burden of casework on already overstretched ASAs, both candidates called for the office to hire more paralegals. 

To fill vacancies, Harris told the Weekly that the SAO could be doing more to recruit law students from the nine law schools in Illinois, seven of which are located in Cook County. Harris called these schools “low-hanging fruit.” And to retain talented lawyers once in the office, Harris said he would allow them to stick to their areas of passion rather than transferring them to a different assignment. “If I have an attorney who’s passionate about the environment, then let’s get them over in [the] civil [division] working on toxic torts,” he said.

O’Neill Burke said the way to lure young lawyers to the office is by giving them better training. She said she will establish an education unit composed of retired judges who will develop curricula for every division in the SAO, in which ASAs will brush up on the Constitution and case law relevant to their practice area.

“This will be like getting a master’s degree in trial work that will serve as a model for training prosecutors for the entire nation,” she wrote in the statement.  

On police accountability, Harris vowed to continue using the “Do Not Call” list of law enforcement officers who can’t testify, and to disclose any and all exculpatory evidence and impeachment information as required by the Supreme Court cases Brady v. Maryland and U.S. v. Giglio. Previous state’s attorneys haven’t always followed these requirements, leading to numerous wrongful convictions and exonerations.

“We don’t need to hide the ball to advocate for the state. We don’t need to double talk to advocate for the state,” Harris told the Weekly. “What we need to do is to put the evidence up front and forward and to move forward in prosecuting people.”

O’Neill Burke agreed entirely that prosecutors must disclose all relevant evidence, but she contended that mistakes would inevitably occur if the office remained severely understaffed. She said that once she solves the staffing issue, she will ensure all attorneys regularly go through training in courtroom procedures and the handling of evidence. 

“By emphasizing the importance of the systems in place, we can guarantee all evidence is tendered to the defense in a timely fashion,” she wrote to the Weekly.

One significant policy disagreement between the candidates is on retail theft, which has risen across the country since the pandemic, according to the National Retail Federation. 

Harris said he would continue with Foxx’s policy of setting a $1,000 threshold for felony theft, which O’Neill Burke blames for the spate of smash-and-grab robberies in the Loop. Everything under that, Harris would prosecute as a misdemeanor.

“People don’t understand that a misdemeanor has [a maximum penalty of] 364 days [in jail],” he explained. “We can still hold people accountable appropriately.”

O’Neill Burke says Illinois law requires that she bring felony charges if the value of the stolen item is $300 or more. 

“I took an oath as a judge, and I will take the same oath as the state’s attorney that I will uphold the law,” she wrote. “If there is public sentiment to change the law, the appropriate avenue to do so is to go to the [state] legislature and change it.”

Max Blaisdell is a fellow with the Invisible Institute and a staff writer for the Hyde Park Herald.