Jussie Smollett case looms over reelection campaign for Chicago’s chief prosecutor

By Mark Guarino 

Jan. 12, 2020 at 4:19 p.m. CST

CHICAGO — In the middle of a video announcing her reelection campaign, Cook County State’s Attorney Kim Foxx did something few Chicago politicians do: She admitted fault.

Foxx had been criticized by President Trump, the Fraternal Order of Police and many Chicagoans for her office’s decision in March to drop all 16 felony disorderly conduct charges against actor Jussie Smollett, who police say staged a racist and homophobic attack involving two men with a noose. Then-Mayor Rahm Emanuel (D) called Foxx’s decision “a whitewash of justice.” Trump characterized it as “a real big scam.”

“Truth is, I didn’t handle it well. I own that,” Foxx (D) said in her two-minute video.

The criticism has not subsided as Foxx fights to keep her position ahead of the March 17 primary, in which she faces three challengers.

She took control of the nation’s second-largest prosecutor’s office in 2016 as the first black woman to hold the title and a key figure in the wave of “progressive prosecutors” who won elections on pledges to fix what they view as a broken criminal justice system that unfairly punishes poor people and racial minorities. Since then, she has been a model of the reform movement, seeking out wrongful convictions, clearing low-level drug offenses and reducing prosecution of shoplifting in favor of targeting gun violence.

But the Smollett controversy threatens to define her term as chief prosecutor. Amid accusations that the dropped charges were a political favor, a judge appointed a special prosecutor to investigate the decision and explore whether there are new grounds to prosecute the former “Empire” actor. Foxx had also requested the Cook County inspector general review her handling of the case.

Her most well-funded primary challenger, former assistant state’s attorney Bill Conway, has made the Smollett controversy a central point in his campaign, promising to be a reformer like Foxx, but one who “will be a beacon of public trust,” he told The Post.

This past spring, the Chicago Fraternal Order of Police demanded Foxx resign. Martin Preib, a vice president of the local police union, told local television station WTTW that “in almost any other city, the notion of a scandal-plagued prosecutor like Kimberly Foxx running for reelection could not be seriously entertained.”

Foxx maintains that her record as chief prosecutor demonstrates a commitment to creating a more equitable criminal justice system, and that “trying to sum it all up by one case is just an attempt to distract by those who want to take us back.”

Her 2016 win was a major victory for the reform movement, criminal justice experts say, mainly because Chicago’s notorious reputation for police misconduct and excessive punitiveness was seen as unbreakable for years.

“It’s not an office historically known for success in confronting the old ways of thinking about crime, and it’s an office that has been criticized for the way race plays a role in its charging practices,” said David Alan Sklansky, co-director of the Stanford Criminal Justice Center. “For constituents to say ‘we want to change the way this office operates’ is significant.”

Some fear losing her bid for a second term would impede the surge in prosecutors seeking to shift the nation away from incarceration-driven practices. More than two dozen newly elected prosecutors have taken office in recent years, advocating for policies such as ending cash bail for low-level charges, not prosecuting certain nonviolent offenses and tackling police misconduct.

“There are many prosecutors in office now because of the glass ceiling Kim broke,” said Miriam Krinsky, executive director of Fair and Just Prosecution, an advocacy group for reform-minded prosecutors. “Who she is and how she eloquently exemplifies the movement has had ripple effects around the country. It’s been disheartening to watch her be defined by a single decision in a single case.”

As the investigation into Smollett’s alleged attack began, Foxx exchanged text messages with a relative of the actor and communicated with attorney Tina Tchen, a Smollett family friend and former chief of staff to Michelle Obama who expressed concerns about the probe.

Foxx ultimately recused herself from the case, handing it over to an assistant state’s attorney, who later announced that the charges had been dropped. Neither Foxx nor her staff has specified why the charges were dropped.

Last year, the city sued Smollett to recover the $130,000 in expenses for investigating his claims. Smollett filed a counterclaim, accusing the city of malicious prosecution. As part of the special prosecutor’s investigation, a Cook County judge has ordered Google to release documentation related to Smollett’s account, including the actor’s emails, chats and photos.

Donna More, a former federal prosecutor who is challenging Foxx, has seized on the case to characterize her as a political insider who cannot be counted on to target white-collar crime or public corruption. One sign, she says, is that Foxx is endorsed by the top officials in Chicago, including Mayor Lori Lightfoot (D) and Cook County Board President Toni Preckwinkle (D).

“Kim Foxx has real issues catering to the rich and famous,” More said. “The reason she was put in there was not to prosecute public corruption cases. She was put in there by the [political] machine.”

Conway has made Foxx’s judgment his key point of dissension, saying he otherwise agrees with her on most aspects of the state’s attorney job. He, too, supports bail reform, expunging marijuana convictions and reducing sentences for nonviolent offenders.

“Whether I am the next state’s attorney or it’s Kim Foxx, there will be a progressive in that office,” he said.

In her first year in office, Foxx dismissed charges against dozens of defendants wrongly convicted of drug offenses. In December, she began the effort to clear more than 1,000 low-level marijuana convictions.

“When I came into office, the county had labored under the reputation of a grossly unjust justice system. We wore the moniker of the false confessional capital of the United States,” Foxx said. “We won a historic election where people were saying they wanted something different.”

Foxx also has raised the standard for prosecuting felony shoplifting charges from a minimum of $300 to $1,000 in stolen goods. That decision played a role in lowering the county’s incarceration rate nearly 20 percent, according to a report by the Chicago Appleseed Fund for Justice, an advocacy organization that seeks to address inequities in the court system.

One of Foxx’s most significant changes is making her office the first county prosecutor in the United States to release case data online, Sklansky said, an action that gives unprecedented transparency into every felony brought to court.

An analysis by the Marshall Project, a nonprofit journalism outlet that focuses on criminal justice, shows that Foxx has turned away more than 5,000 low-level shoplifting and drug cases that probably would have been pursued by the previous state’s attorney, Anita Alvarez (D). Some were referred to alternative treatment programs, such as restorative justice courts where community members outline restitution measures for young nonviolent offenders. About 2,300 drug cases were dismissed because the defendants entered counseling to avoid trial.

But the Fraternal Order of Police and other detractors say Foxx’s actions send a dangerous message to criminals.

“When you don’t hold somebody responsible for retail theft, they become emboldened,” More said. “Every shoplifter in Chicago knows they won’t get prosecuted.”

Foxx rejected such characterizations of her policies, saying that reducing prosecution of retail theft allows her office to focus on a more severe threat: gun violence. In the first half of 2019, felony arrests for unlawful use of a weapon represented 25 percent of the cases pursued by her office, compared with less than 15 percent the year before she took office, according to the Marshall Project. During her term, the top-prosecuted cases after drug offenses have flipped from retail theft to weapon-related crimes.

Violent crime in the county has fallen in recent years, which crime experts here say is part of a long-term trend. Foxx agrees but believes that her reforms have played a role.

“We can demonstrate that we have prosecuted more gun cases and prosecuted these gun cases more successfully. That correlates with shootings going down, so we are happy to be part of that conversation,” she said. “We believe it has made a difference.”

As Foxx fights for a second term, the race has gotten heated. She is one of few prosecutors who has been publicly slammed by Trump, and law enforcement has marched in protest in front of her office. Both, she says, are evidence of the “cultural change” that is underway — not just in Cook County, but across the United States.

“This is a shock to those who have benefited from the way that our previous justice system has worked,” Foxx said. “When the FOP and Trump talk about criminal justice, they aren’t talking about policies, they’re talking about fearmongering.”