Electing Progressive Prosecutors Isn’t Enough. Now, Activists Are Holding Them Accountable.
Above Photo: The election of Kim Foxx in Cook County presented a rare opportunity to inject progressive reforms into a broken criminal justice system. (Dominican University/Flickr)
From Kim Foxx in Chicago to Larry Krasner in Philadelphia, reform-minded prosecutors are facing pressure from organizers working to transform the criminal justice system.
In October 2015, Rev. Charles Straight, pastor of the Faith United Methodist Church in Dolton, Illinois, and other members of the People’s Lobby sat down with Kim Foxx to find out whether she was a worthy and willing partner in criminal justice reform. Straight remembers that Foxx, who was running for Cook County State’s Attorney, said she was committed to countering the failed war on drugs and stemming other drivers of mass incarceration.
“She had a stake in seeing that the criminal justice system would work for all people, particularly people of color,” Straight says. “We found that she was a partner we could talk to about some of these things.”
The People’s Lobby, a grassroots organizing group, and Reclaim Chicago, the political action committee it supports, are two of the progressive organizations that campaigned for Foxx. The two groups claimed they knocked on more than 300,000 voters’ doors across Chicagoland to build support for Foxx in her campaign against embattled incumbent Anita Alvarez. Foxx defeated Alvarez in the March 2016 Democratic primary in a landslide and cruised to victory in the December 2016 general election, making her the first African-American woman to serve as Cook County State’s Attorney.
Organizers celebrated Foxx’s election as a rare opportunity to inject progressive reforms into a broken criminal justice system.
But their work wasn’t done.
Fixing a system that ravages black and brown communities takes more than just electing a prosecutor, Straight says. He explains that community organizers have to build structures to hold candidates accountable and establish a relationship in the spirit of co-governance.
“This idea of getting politicians elected and then letting them go on about their business and do whatever they want to do is dead,” Straight says. “We’ve got to stop that.”
“A Wedge in the System”
Foxx rode into office with support from African-American activists and progressive organizations such as Reclaim Chicago, the People’s Lobby, Southsiders Organized for Unity and Liberation and the Workers Center for Racial Justice. Foxx also benefited from the organizing work of Black Lives Matter affiliate Assata’s Daughters and their powerful #ByeAnita campaign which urged Cook County residents to vote against Alvarez due to her poor record on criminal justice issues.
When Foxx was elected in 2016 she joined a wave of reform-minded prosecutors who have risen to power in recent years across the country. Their ranks include Kim Ogg, the first openly gay district attorney in Harris County, Texas, and Aramis Ayala, Florida’s first African-American state attorney in the state’s 9th Judicial Circuit Court. In November 2017, longtime New York prosecutor Eric Gonzalez won his bid to become Brooklyn’s first Latino district attorney. That same month, Larry Krasner, a civil rights attorney who had represented Occupy Wall Street and Black Lives Matter activists, was elected Philadelphia’s district attorney
Rather than simply working outside of the system, many activists are turning to electing prosecutors they believe will push progressive criminal justice policies and do less harm than their predecessors. But holding prosecutors accountable once they’re in office is not as straightforward as it can be for other elected officials. City council members, governors and senators introduce legislation through public channels, vote on-the-record regarding potential laws and allocate dollars in publicized budgeting processes.
But a prosecutor isn’t a traditional elected official. Prosecutors can choose not to seek bail in particular cases or drop charges. They can recommend that judges commit offenders to alternatives to jail or prison. They can announce policies that aim to be “tough” on crime. But prosecutors don’t control government coffers that fund their policy agenda. Prosecutorial discretion is not the same as passing a law. And it takes watching the courts in real time to document when, how, and for whom prosecutors exercise discretion, as well as what judges ultimately decide.
Straight says local organizers have put into practice a model aimed at holding Foxx accountable, based on four key practices:
- Organizers use their platforms to keep the conversation around criminal justice reform in the public eye.
- Organizers hold small quarterly meetings with Foxx where she reports how her reform agenda has progressed.
- Organizers hold public forums where Foxx talks with community members about her criminal justice reform efforts.
- Organizers don’t just take Foxx’s word for it: they gather their own research and publish reports that praise Foxx’s triumphs, call out her shortcomings and assess how her prosecutors are using their discretion in the courtroom.
In December 2017, The People’s Lobby, Reclaim Chicago, and policy advocacy group Appleseed Chicago published a report titled “In Pursuit of Justice for All: An Evaluation of Kim Foxx’s First Year in Office.”
The report gave Foxx high marks for advancing bail reform, being more forthcoming with the office’s data than her predecessor, and enacting guidelines meant to keep certain low-level nonviolent offenders out of jail and out of court. In December 2016, Foxx declared her office would not charge shoplifters with a felony unless they stole at least $1,000 in merchandise or had 10 prior felony convictions. The previous threshold for felony shoplifting was $300. Last summer, Foxx announced her office would no longer prosecute people for driving with a suspended license if the underlying reason for the suspension is financial, such as failure to pay parking tickets or child support, reversing a policy the report says “was one of the most direct ways that previous Cook County State’s Attorneys criminalized poverty.”
But on other issues, the report accuses Foxx of moving too slowly or not doing enough. She was criticized heavily for failing to institute policies that combat the war on drugs or to protect undocumented immigrants called to the court as defendants or victims who fear consequences as a result of their immigration status.
“[Foxx] is not a perfect partner,” Straight says. “But a partner nevertheless.”
Other activists around the country have taken an approach similar to the Chicago model of prosecutorial accountability.
In Philadelphia, activists are watching Krasner, who won his office with heavy backing from African-Americans and young people. After his election, the Philadelphia Coalition for a Just District Attorney, a group of civil rights and community organizations, gathered outside Krasner’s office and announced a list of demands for his first 100 days.
Racial justice group Color of Change is a member group in the coalition, and its criminal justice campaign director Clarise McCants says organizations with the coalition have been meeting with Krasner regularly to discuss their demands.
As in Chicago, these organizations are working to build a close relationship with the district attorney’s office and keeping a close eye on whether Krasner fulfills his campaign promises.
“Even with somebody as radical as he is, there are realities around the fact that he has a wide array of people to answer to,” McCants says, noting staunch opposition to Krasner from the local police union.
Alyssa Aguilera is the political director of VOCAL- NY, a grassroots organizing group working to keep the pressure on both new Brooklyn DA Hernandez as well as incumbent Manhattan DA Cy Vance Jr.
“We need to create moments for them to prove they are really holding true to their promises and are implementing the policies that they’re saying behind podiums and in their press releases,” she says.
Aguilera says she is impressed by efforts in Cook County to quantify what Foxx’s prosecutors do and don’t do in the courtrooms through the Community Courtwatching Initiative.
The initiative is administered by the Coalition to End Money Bond, which formed in May 2016 with member organizations including Southsiders Organized for Unity and Liberation, Chicago Appleseed, The People’s Lobby and others. The coalition trains community members to attend bond court hearings, gather information about defendants and how prosecutors are using their discretion, and document what judges are deciding in cases.
In February, the coalition issued a massive report sharing data and analysis from its court watching initiative that highlighted the progress and shortcomings of various reform measures. In an example of an area where Foxx did not perform up to expectations, the report assessed the impact of a policy she announced in June 2017 that ordered prosecutors to proactively recommend pretrial release through I-Bonds, or no-cash bonds, for some defendants charged with misdemeanors and certain low-level felonies such as retail theft, damage to public property or use of controlled substances.
“While this measure from the Cook County State’s Attorney Kim Foxx is well-intentioned and creates an unlikely ally and advocate for pretrial release by having prosecutors voice support for I-Bonds, the policy only applies to a small percentage of people in bond court: 8 percent at the highest period observed,” the report notes.
In late February, Aguilera says New York groups launched a similar court monitoring operation called Court Watch NYC, inspired by what’s happening in Cook County. Court Watch NYC is a collaboration between her group VOCAL-NY, the Brooklyn Community Bail Fund, a non-profit organization that helps pay bail for New Yorkers who can’t afford it, and 5 Boro Defenders, a coalition of public defenders who organize to reform the criminal justice system.
Aguilera says Vance and Gonzalez “have been lifted up across the country for having more progressive policies and making moves toward decarceration.”
Yet Aguilera struggles with the idea of a progressive prosecutor. Her goal “is not to make mass incarceration a little better, a little kinder, a little less violent, but to completely upend the system.” “I think that [progressive prosecutor] is a bit of an oxymoron,” Aguilera says. “The job in and of itself is to convict people and send people to jails and prisons. It will continue to be that for the foreseeable future.”
McCants doesn’t know that any prosecutor would be able to completely transform the system, because they ultimately have to operate within it. “But they are extremely powerful decision makers and they hold a lot of the power,” she says.
Krasner, like Foxx, campaigned to end mass incarceration, reform the bail system, treat addiction as a medical issue rather than a crime and other progressive policies. But Krasner, a former civil rights attorney, comes from a much different pipeline than Foxx, a political protégé of Cook Democratic establishment stalwart Cook County Board President Toni Preckwinkle whose resume includes a stint as an assistant state’s attorney.
In February, Krasner announced his prosecutors would no longer bring to trial simple marijuana possession, and would not seek cash bail for people charged in about two dozen misdemeanors and nonviolent felonies such as driving under the influence, resisting arrest and prostitution.
“The fact that thousands of people are not going to be locked up because they’re not going to be seeking bail in these cases is not the full measure of dismantling the system. But people aren’t going to be sitting in jail,” McCants says.
Activist and writer Shaun King is also praising Krasner. In a March 21 story in The Intercept, King notes that talking about criminal justice reform has gotten a lot of prosecutors elected around the country, and “once in office, their reforms have often been painfully slow and disappointing,” but Krasner so far has been a different case.
“Krasner was the first candidate elected who publicly committed not just to intermittent changes, but a radical overhaul. … So far, having been in office less than three months, he has exceeded expectations. He’s doing something I’ve never quite seen before in present-day politics: Larry Krasner’s keeping his word — and it’s a sight to behold.” King writes.
In his first three months in office, Krasner has fired at least 31 prosecutors from his office who lacked a commitment to his reform agenda; complied with a court order to release a list of 29 officers deemed unreliable as witnesses because of crimes or misconduct, including lying to investigators and filing false reports; and signaled that he wouldn’t fight rapper Meek Mill’s release on bail. King goes on to praise an “essential and revolutionary” five-page internal memo Krasner sent his staff of lawyers on February 15 that orders them to follow policies that “are an effort to end mass incarceration and bring balance back to sentencing.”
McCants says prosecutors such as Krasner are critical because they can reduce harm in communities of color in the short term and help transform the justice system in the long term.
She sees prosecutors who engage with reformers as “a wedge in the system,” to inch the door open for more radical changes down the line.
“I am not the silver bullet”
Many of the same progressives who helped Foxx win her election argue that she hasn’t done enough to help end the drug war in Cook County. They want to see her foster the transformation from a law-and-order approach to the public health approach she championed when volunteers were knocking on thousands of doors and making calls to get her elected.
Sharlyn Grace, senior criminal justice policy analyst and staff attorney at Chicago Appleseed, says Foxx ran on a platform premised on the belief that people don’t belong in the criminal justice system because they use or are addicted to drugs.
“These are thousands of peoples’ lives unnecessarily and counterproductively being funneled into the system,” Grace says.
In September 2014, a Chicago Reporter investigation by Angela Caputo found that since 2006, individuals had been processed at Cook County Jail and released more than 100,000 times for drug possession. The investigation also found that drug possession was the number one reason people find themselves behind bars at Cook County Jail.
In that same span, taxpayers spent $778 million “jailing people on the lowest-level possession charges,” and about one in three of the cases were dismissed. Caputo wrote that when Alvarez was still in office, “many users are released from a costly stay in jail without treatment, only to come back weeks or months later.”
“But the office is continuing as of now to prosecute them in the same way that Alvarez’s office did,” Grace says.
Foxx maintains her belief that a public health approach is vital. However, she insists that meaningful movement to end the drug war won’t come from her office alone. It will require cooperation from police departments, judges, lawmakers and public health officials.
Foxx says she can use her platform to push the political conversation toward criminal justice reform and the dire need to treat drug use as a public health issue. She says she can also push prosecutors to use more discretion in criminal cases against drug users, but that she alone isn’t enough to change the trajectory of the system.
“I am not the silver bullet,” Foxx says. “We will have impact, but if we want long-term sustainable impact, that is a collective, collaborative effort. “
Foxx explains that the state’s attorney’s office can lobby for more drug offenders to be put in court-ordered drug treatment or other diversion programs meant to avoid criminal prosecutions. But there have to be treatment options on the table with enough capacity.
“Having people not prosecuted but still addicted and engaging in other things to feed that addiction isn’t going to help,” she says.
According to Foxx, a public health approach to drug use also requires that judges recognize that “addiction means sometimes people fall off the wagon and we can’t just throw them in jail” if they slip up while in diversion programs. Grace points out that we still have laws in the Illinois Criminal Code that make it the job of police to haul drug users to jail in the first place, and that leaves citizens at the mercy of prosecutors and judges.
“That’s why we need laws that are less about discretion and more about limiting power in ways to reduce impact on communities,” Grace says.
However, Foxx isn’t a lawmaker. She’s a law enforcer. What she can do to help foster legislative change, she says, is use her platform “to convene those conversations and move things.”
Foxx also faces other serious obstacles to her reform agenda. She says it’s a struggle to get prosecutors to shift away from the idea that a high conviction rate is the marker of success. Most of the attorneys under Foxx were hired by her predecessor or previous states attorneys. According to Foxx’s office, about 135 assistant states’ attorneys have left since Foxx began her term on on Dec. 1, 2016: Nine retired, 25 were fired, and 101 resigned, including many attorneys who knew they were on the chopping block. Foxx has hired 56 new attorneys since then.
She also has to deal with other players in the criminal justice system that are less committed to reform, including judges. In August, a judge in Cook County threatened one of her attorneys with contempt of court for demanding that a pregnant woman forced to give birth in jail be released. The woman had been held without bail on retail theft and traffic charges.
In November, Foxx’s Conviction Integrity Unit vacated 18 convictions for 15 defendants in cases tied to former police sergeant Ronald Watts and officers under his command who showed a pattern of making bogus drug arrests and engaging in misconduct that raised doubts about the validity of their investigations. In November, Foxx also dropped charges against Jose Maysonet after five former cops said they would stay silent and plead the fifth rather than testify in his retrial. Maysonet, behind bars for 27 years, had accused retired detective Reynaldo Guevara of beating a false confession out of him in 1990 that led to a 1995 murder conviction. Fraternal Order of Police President Kevin Graham wrote a letter to the Chicago Sun-Times accusing Foxx of “vilifying police officers.”
DeAngelo Bester, executive director of the Workers Center for Racial Justice, which stumped for Foxx with the People’s Lobby, knows that Foxx faces a tough road ahead. That doesn’t mean he’s giving her a pass.
“We understand how politics goes,” Bester says. “But at the end of the day, we’re going on 30, 40 years of the war on drugs, which is a war on black people. We feel we’re in a moment now where it’s time for things to actually change.”
Bester says Foxx’s real test will come in 2020, when she’s up for re-election.
“If things continue down this road with her kind of slow walking the process, there won’t be the same swell of energy behind her campaign,” he says.
Yet even the most progressive prosecutor can’t stop police from racially profiling, force lawmakers to pass legislation that ensures people convicted of low-level offenses aren’t at the mercy of a prosecutor or judge’s discretion, or change how people of color affected by the criminal justice system are often deprived of the compassion they deserve. It takes more than a reform-minded prosecutor to convince people that a person’s drug use doesn’t make them a horrible human being who deserves to have their life, career and future disrupted by a prison stint.
But the thousands of top prosecutors leading counties across the country do determine how laws materially impact people’s lives, and through the decisions they make wield a tremendous amount of power in the criminal justice system. According to activists, the days of them flying under the radar of voters and community organizers has to end, and movements can and should hold their feet to the fire. Foxx, Krasner, Vance, Hernandez, and other reform-minded prosecutors are only a small fraction of the accountability picture.
“One thing we all can recognize,” says Aguilera, “is that prosecutors hold an immense amount of power and are largely going unchecked by people who elected them.”