Con­tro­versy re­veals re­form di­vide

Smol­lett case shows Foxx’s ef­forts fall on racial, class lines

Chicago Tribune (Sunday) - - CHICAGOLAN­D - By Lolly Bowean and Gre­gory Pratt lbowean@chicagotri­bune. com gpratt@chicagotri­ Twit­ter @lolly­bowean Twit­ter @roy­al­pratt

In his Back of the Yards parish, where Fa­ther David Kelly and staff work with cit­i­zens re­turn­ing home from prison in need of hous­ing, jobs and a sec­ond chance, he says the name Jussie Smol­lett hardly ever gets men­tioned.

So when Kelly and his team at Precious Blood Min­istry of Rec­on­cil­i­a­tion think about Cook County State’s At­tor­ney Kim Foxx, he said, they think about restora­tive jus­tice prac­tices and bail re­form — not the case against the for­mer “Em­pire” ac­tor that is get­ting much of the at­ten­tion a month be­fore the March 17 pri­mary elec­tion.

“Peo­ple in my cir­cle and peo­ple who are work­ing on the front lines in re­gards to com­mu­ni­ties im­pacted by vi­o­lence and in­car­cer­a­tion, we sup­port her and what she’s try­ing to do,” said Kelly, who noted he does not make po­lit­i­cal en­dorse­ments. “No one ever speaks to Jussie Smol­lett — he’s not even an is­sue here. We are deal­ing with real is­sues in re­gards to young peo­ple find­ing an al­ter­na­tive to car­ry­ing guns, young peo­ple feel­ing lis­tened to and sup­ported, young peo­ple find­ing jobs.”

He added: “We be­lieve you don’t just pros­e­cute be­cause you can.”

As the Cook County state’s at­tor­ney’s race kicks into high gear, the Smol­lett case has re­vealed a deep di­vide in Chicago and the re­gion over what crim­i­nal jus­tice looks like and just how its prin­ci­ples are ap­plied. That di­vide of­ten has been along racial and class lines, pit­ting res­i­dents who live in ma­jor­ity white, higher-in­come com­mu­ni­ties who say a pros­e­cu­tor should be tough, against res­i­dents in lower-in­come black and brown neigh­bor­hoods where there are calls for the top pros­e­cu­tor to be fair and for­giv­ing.

The di­vide over Foxx and what a pros­e­cu­tor should be was per­haps most vis­i­ble last spring when the Smol­lett case sparked du­el­ing protests down­town. But it has resur­faced again just weeks be­fore the elec­tion af­ter a spe­cial pros­e­cu­tor had Smol­lett in­dicted for al­legedly stag­ing a hate crime against him­self to boost his act­ing ca­reer, re­vers­ing Foxx’s de­ci­sion last year to drop all charges.

Dan Webb, the spe­cial pros­e­cu­tor, said a fur­ther pros­e­cu­tion of Smol­lett was “in the in­ter­est of jus­tice” based on fac­tors that in­cluded “the ex­ten­sive na­ture” of his al­leged false­hoods, the time and money po­lice de­voted to the ini­tial in­ves­ti­ga­tion and the strength of the orig­i­nal case Foxx’s of­fice brought against the ac­tor. Webb said in his state­ment that his in­ves­ti­ga­tion into how Foxx’s of­fice han­dled the case was on­go­ing, but he said that did not nec­es­sar­ily mean any­one com­mit­ted any wrong­do­ing.

Still, his of­fice de­ter­mined that it “dis­agrees” with how the state’s at­tor­ney’s of­fice han­dled the case and said prose­cu­tors were “un­able to pro­vide” ev­i­dence Smol­lett was treated the same as other low-level of­fend­ers.

Foxx was elected in 2016 among a wave of prose­cu­tors who vowed to re­form the crim­i­nal jus­tice sys­tem by plac­ing less em­pha­sis on low-level of­fend­ers and work­ing to get wrongly con­victed res­i­dents their free­dom. Now she, along with many of those same prose­cu­tors across the coun­try, is fac­ing back­lash from res­i­dents and groups who sup­port tra­di­tional law en­force­ment strate­gies, ex­perts and po­lit­i­cal ob­servers say.

“Iden­tity politics are very much a part of this,” said Lucy Lang, ex­ec­u­tive di­rec­tor for the In­sti­tute for In­no­va­tion in Pros­e­cu­tion at John Jay Col­lege where Foxx is an ad­vi­sory board mem­ber along with a hand­ful of other prose­cu­tors. “It bears not­ing that across the coun­try, fe­male prose­cu­tors of color are ex­pe­ri­enc­ing a de­gree of push­back, and even vit­riol.”

The push­back demon­strates that the two com­mu­ni­ties ex­pe­ri­ence the crim­i­nal jus­tice sys­tem in two dra­mat­i­cally dif­fer­ent ways.

“This is a pros­e­cu­tor who ran on a plat­form of not pros­e­cut­ing low-level of­fenses that have been harm­ful to com­mu­ni­ties of color across gen­er­a­tions,” said Lang, a for­mer as­sis­tant district at­tor­ney in Man­hat­tan. “A de­ci­sion was made that was con­sis­tent with what she said she would do when she was run­ning for of­fice. Folks who don’t like it, my sus­pi­cion is these are the same peo­ple who never shared her vi­sion.”

De­spite the con­tro­versy, Foxx has racked up scores of en­dorse­ments from African Amer­i­can min­is­ters as well as high-pro­file politi­cians, in­clud­ing Illi­nois Sen. Tammy Duck­worth and Demo­cratic pres­i­den­tial can­di­dates Mas­sachusetts Sen. El­iz­a­beth War­ren and Ver­mont Sen. Bernie San­ders.

Mean­while, Foxx’s op­po­nents have had to strad­dle a fine line op­pos­ing her of­fice’s ac­tions in the Smol­lett case while still fa­vor­ing crim­i­nal jus­tice poli­cies that go af­ter vi­o­lent of­fend­ers and at­tempt­ing to ap­peal to peo­ple who will be cast­ing bal­lots in the Demo­cratic pri­mary elec­tion.

In Cook County, vot­ers gen­er­ally have sup­ported bond re­form ef­forts and mea­sures that in­crease penal­ties on vi­o­lent crim­i­nals while tak­ing a more tol­er­ant view on lesser of­fenses. That’s re­flected by can­di­dates’ stances, which em­pha­size the need for a “bal­anced” jus­tice sys­tem. Foxx’s chal­lenger Bill Con­way, for in­stance, has stressed that the sys­tem should “pri­or­i­tize hu­mane treat­ment while en­sur­ing dan­ger­ous of­fend­ers stay in jail.”

But some counter that the crim­i­nal jus­tice pen­du­lum has swung too far the other way, show­ing too much le­niency to peo­ple caught break­ing the law.

Northwest Side Ald. Nick Sposato, 38th, whose ward in­cludes a large num­ber of first re­spon­ders, said he takes ex­cep­tion to Foxx’s of­fice rais­ing the thresh­old for felony prose­cu­tions on thefts and said too many se­ri­ous of­fend­ers are be­ing let back out on the street.

“Maybe we’ve been too tough on stuff we shouldn’t be so tough on like pot, but she’s too soft on hard­ened crim­i­nals,” Sposato said. “The Smol­lett thing was the nail in the cof­fin.”

For­mer Ald. Joe Moore, who rep­re­sented Far North Side Rogers Park for nearly 30 years, said many white vot­ers view the Smol­lett case as “sym­bolic about what they fear is a soft­en­ing on prose­cu­tions and a soft ap­proach to crime.”

“They’re more con­cerned about just lock­ing up the bad guys — the very tra­di­tional view of what prose­cu­tors should do, that prose­cu­tors should pros­e­cute and I think Foxx has a more nu­anced view and ex­er­cises her dis­cre­tion to con­cen­trate most of their en­ergy and re­sources on vi­o­lent crimes and gun crimes,” said Moore, who sup­ports Foxx.

When asked about the Smol­lett case on Fri­day, as she was pick­ing up Duck­worth’s pub­lic en­dorse­ment, Foxx noted that it was just one of the high-pro­file cases her of­fice has han­dled dur­ing her ten­ure. Foxx pointed to her of­fice’s work pros­e­cut­ing singer R. Kelly and tak­ing steps to find po­ten­tial ac­cusers to come for­ward, as well as se­cur­ing con­vic­tions against the men re­spon­si­ble for killing 9year-old Tyshawn Lee and 15-year-old Hadiya Pendle­ton.

Foxx said she’ll take the crit­i­cism on be­half of prose­cu­tors in her of­fice who work on cases that may not “el­e­vate to the top of a head­line.”

“We’ll also tout the work of the coura­geous men and women of our of­fice who show up ev­ery day and do the work that peo­ple don’t write about,” Foxx said, “and that is an honor.”

Foxx and other re­form prose­cu­tors have the tough job of chal­leng­ing a pow­er­ful and strong old van­guard that em­braces a sys­tem that his­tor­i­cally has been heavy­handed, said Bruce West­ern, co-di­rec­tor of the Jus­tice Lab at Columbia Uni­ver­sity.

The re­form prose­cu­tors an­swer to two very dif­fer­ent con­stituen­cies, West­ern said. One con­stituency hears about crime and vi­o­lence and tends to think pun­ish­ment and prison are the way to ad­dress it, while an­other ex­pe­ri­ences crime and vi­o­lence but also has to live with heavy polic­ing, in­tense ar­rests and the many lay­ers of law en­force­ment.

“Of­ten the crim­i­nal jus­tice sys­tem has a very sim­plis­tic moral frame — the world is di­vided into vic­tims and of­fend­ers and the pros­e­cu­tor’s job is to keep the vic­tims safe from of­fend­ers,” he said. “But the way the crim­i­nal jus­tice sys­tem op­er­ates in real life doesn’t meet that sim­plis­tic frame.”

And so Foxx has to reckon with work­ing within a sys­tem that up­holds the law but also causes dam­age.

“She is ap­proach­ing a chal­leng­ing ques­tion: How, as a pros­e­cu­tor, can you play a pos­i­tive role in harmed com­mu­ni­ties, given the his­tory of the po­si­tion,” he said. “For the re­form pros­e­cu­tor at some level … it’s a kind of civil rights ac­tivism. Their vi­sion of pub­lic safety has to con­sider that the sys­tem they over­see has been harm­ful to their com­mu­nity.”

In Chicago, some ad­vo­cates for re­form­ing the crim­i­nal jus­tice sys­tem feel dis­mayed by the un­fold­ing po­lit­i­cal cam­paign.

When she was head of the Black Youth Project, Char­lene Car­ruthers was one of the ac­tivists call­ing for re­form at the Cook County state’s at­tor­ney’s of­fice — in part be­cause of­fi­cials in lead­er­ship seemed re­luc­tant to hold po­lice ac­count­able for shoot­ing un­armed black and brown peo­ple.

As she’s watched the rhetoric around the Smol­lett case dur­ing this cam­paign sea­son, Car­ruthers said she has found her­self frus­trated.

“This is a lot of dog whistling … it re­veals what some peo­ple are about,” she said. “They care more about this mi­nor case that is rid­dled with con­fu­sion than they care about po­lice cor­rup­tion, than they care about cre­at­ing safe com­mu­ni­ties, than they care about cre­at­ing a city where our re­sources are used to strengthen com­mu­ni­ties rather than jail peo­ple.

“It feels so disin­gen­u­ous.”


Cook County State’s At­tor­ney Kim Foxx, seen on Dec. 31, con­tin­ues to face crit­i­cism for her han­dling of the Smol­lett case.

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