Liberal prosecutors face backlash over lenient charges following civil unrest and looting

By Katie Shepherd and Mark Guarino

August 12, 2020 at 6:22 p.m. CDT

Mass arrests following nights of tumultuous unrest in Chicago and Portland, Ore., have pitted liberal prosecutors against police and even Democratic allies over concerns that lenient charges will lead to further property damage and violence.

The newly seated top prosecutor in Portland’s Multnomah County said his office will not prosecute cases of disorderly conduct, interfering with a peace officer or rioting, unless those charges are accompanied by more serious charges involving property damage or injury to another person.

In Chicago, where police arrested more than 100 people after rampant looting early Monday devastated the city’s central business district, some local officials have blamed liberal policy changes by top prosecutor Kim Foxx for the shattered windows and raided shelves.

Her changes lower penalties for theft and shoplifting, and even local politicians who have broadly supported criminal justice reform have criticized Foxx for choosing not to pursue felony charges against some of the people arrested for looting.

“Our Cook County Prosecutor’s Office and the Cook County Judicial system are failing us like never before. We expect prosecutors to enforce all of our laws with equal vigor — City and State laws are not a ‘buffet’ for prosecutors to selectively enforce — they must all be enforced,” Alderman Brendan Reilly (D), whose ward encompasses the areas where the looting took place, said in a Monday letter to residents. “When there are no consequences for these criminal acts — large or small — it only serves as further incentive for these criminals to repeat these crimes over and over.”

Foxx, who was elected in late 2016 on a platform to improve a criminal justice system that disproportionately affects poor people and racial minorities, has told reporters she stands by the reforms she has put in place, which include raising the standard for felony theft charges from a minimum of $300 to $1,000 in stolen goods.

Her office said the police department sought felony charges in 25 cases of the more than 100 arrests made Monday, and 24 have been approved. The charges include aggravated battery of a police officer, criminal damage to property, unlawful use of a weapon, and burglary/looting. The number of misdemeanor cases stemming from Monday is not yet known.

Foxx’s raised bar for felonies has frustrated Chicago Police Superintendent David Brown, who, since the unrest following protests spurred by the killing of George Floyd in May, has complained that repeat offenders are cycling through the court system due to reduced charges, low bail amounts and an inefficient electronic monitoring system.

Foxx countered that the police department has been slow to bring her office felony cases. Of the 5,000 arrests made following Floyd’s killing through late June, only 29 percent were felony cases, she said.

“Our office is not in the arresting business,” she said. “We get cases when they are brought to us.”

Chicago Mayor Lori Lightfoot (D), who supported Foxx’s reelection this year, said Tuesday that she talked with the top prosecutor about the importance of charging the looters with felonies.

“I know every police officer wants everything to be a felony, but it is up to the prosecutor to determine that,” Lightfoot said.

She said police are scanning hundreds of hours of video from city-owned and store-operated cameras to strengthen the cases they present to Foxx.

“We are doing everything we can, sparing no resource, to bring [the looters] to justice,” she added.

But Reilly and a handful of other aldermen who represent downtown wards or wards in wealthy districts said Wednesday that they were hesitant to support Foxx in November. Alderman Raymond Lopez (D) said he has “no intention — on this day — of doing anything except not helping Kim Foxx” win reelection.

“She’s clearly not doing her job,” Lopez told Chicago business publication Crain’s on Wednesday. “She’s a bad candidate, and she’s giving our whole party a black eye.”

In Portland, officers arrested dozens of people over three nights of raucous protests this past weekend. Some protesters lit fires in the street, a few threw projectiles at police, and a small group broke into the police union building on Saturday night. Scores of others shouted at the police and blocked traffic but otherwise remained peaceful. Most of those who were arrested, for disorderly conduct or interfering with a peace officer, will not be charged with a crime, according to a statement from Multnomah County District Attorney Mike Schmidt.

Schmidt said his policy makes a clear distinction between a small number of agitators who engage in violence and destruction and the otherwise peaceful protesters who sometimes get swept up in mass arrests as police move to quell unwieldy demonstrations.

“This policy acknowledges that the factors that lead to the commission of criminal activity during a protest are incredibly complex,” Schmidt said at a news conference Tuesday. “Some of those violations are impermissible by any standard, resulting in physical violence, injury and worse. Others represent the instinctive reactions of people who have been gassed repeatedly, who have been struck with kinetic projectile weapons, and who have seen other protesters arrested in ways that they deeply disapprove of.”

He said the new policy will be retroactive for hundreds of people who have been arrested in protests following Floyd’s killing in late May. Schmidt’s office has received about 550 cases related to protests that have occurred every night since May 29. About 410 cases are misdemeanors or violations, and many of those will likely be rejected under the new policy.

“I want to make it very clear, though, this is not a free pass,” Schmidt said. “I will not tolerate deliberate acts of violence against police or anyone else. Engage in that type of conduct and you should expect to be prosecuted.”

The decision opposes a recent call for harsher penalties from the police union.

“The people committing arson and assault are not peaceful protestors; they are criminals,” Portland Police Association President Daryl Turner said in an open letter to Schmidt last week. “Step up and do your job; hold the rioters accountable. If there is no consequence for crimes from the District Attorney’s office, there is no reason for criminals to stop the chaos.”

Portland Police Chief Chuck Lovell said his officers will continue to make arrests when they witness crimes.

“As always, whether the District Attorney decides to charge cases we send to his office is up to him,” Lovell said in a statement. “The Portland Police Bureau will continue to do the job the community expects of us.”

One of the first activists to publicly benefit from Schmidt’s leniency was Demetria Hester, a well-known Black organizer with the Wall of Moms who was the victim of a hate crime in 2017. Hester, 46, was arrested Sunday night on charges of disorderly conduct and interfering with a peace officer, which Schmidt’s office dropped Monday.

“It’s a step in the right direction,” Hester said. “We need to keep pushing on so that we can get the police defunded and not waste all this money on cases that don’t need to be pursued.”

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