Controversy reveals reform divide
Smollett case shows Foxx’s efforts fall on racial, class lines
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.”