New Cook County prosecutor faces challenges to fix Kim Foxx legacy

A new Cook County state’s attorney inherits crime problems aggravated by her predecessor, Kim Foxx. Eileen O’Neill Burke seems ready to fight crime without abandoning efforts to be fair to minority defendants. Here’s what she should do.

Homicides, motor vehicle theft and other crimes rose under the progressive agenda of Cook County State’s attorney Kim Foxx, leaving her successor with a lot of challenges and issues to fix.

The question is: What can Cook County expect from Foxx’s replacement, former criminal defense attorney, judge and prosecutor Eileen O’Neill Burke?

And what should she do to repair the damage to public safety and residents’ trust in criminal prosecutions?

Burke can make Chicago and Cook County safer through reforms such as filing more felony charges, including for low-level offenses such as driving on an expired license and retail theft. She can use fewer diversion programs.

Kim Foxx’s legacy as a progressive prosecutor

Foxx pledged reforms including decarceration, diversion and non-enforcement. She prioritized expungement or nonenforcement for many nonviolent offenders.

In 2020 she ensured 45% of suspended license charges were rejected for felony prosecution. She declined felony charges for driving on a suspended license twice as often as her predecessor.

Foxx also raised the felony prosecution threshold for retail theft to over $1,000, even though Illinois has a threshold of $300 or more. The year before Foxx took office, 29% of retail theft prosecutions were pursued as felonies. A year later only 10% were.

Shoplifting has increased significantly under Foxx, according to a June 2024 report from the Council on Criminal Justice.

According to an analysis by the Marshall Project, Foxx declined to prosecute “more than 5,000 cases that would have been pursued by previous state’s attorney Anita Alvarez.” Most of that reduction was through “declining to prosecute low-level shoplifting and drug offenses and… diverting more cases to alternative treatment programs.”

Class 4 narcotics charges accounted for 28.5% of felony charges in 2019. Under Foxx it dropped to 16.5% in 2021 while the felons sent to diversion programs increased 30%.

Foxx dropped felony charges against 29.9% of defendants compared to Alvarez dropping them against 19.4%. In November 2016, 1,000 defendants from Cook County went to prison, but it was only 500 in November 2021 under Foxx.

Homicides increased significantly under Foxx, hitting hardest in Chicago’s low-income and minority neighborhoods. Black Chicagoans are over 20 times more likely to be homicide victims than white Chicagoans.

It was an epic failure of Foxx’s policies intended to benefit “poor, Black and Brown communities.”

What to expect from Burke

Judging by her public statements, Burke is not a progressive ideologue. She is likely to push for greater equity by “reducing the disproportionate incarceration rates of people of color in Cook County.”

As a candidate, Burke said she supported:

1. The provision of the SAFE-T Act eliminating cash bail in Illinois. Burke argued the new system allows pre-trial detention to be determined based on a person’s assessed danger to the community rather than economic circumstances.
2. A “restorative justice bureau” focusing on addressing the “underlying issues driving criminal behavior rather than resorting to detention.” She suggested specialized courts suited to the circumstances of juveniles, veterans and those suffering from addiction or mental illness.
3. Reforms in the juvenile justice system to provide apprenticeships, community engagement, educational enrichment and vocational training to at-risk youth.
4. A “choice protection unit” in the state’s attorney’s office to prevent “insidious” out-of-state actors from stopping women getting abortions in Cook County or Illinois.
5. Deprioritizing prosecutions related to cannabis, driving violations or sex work, retroactive sentencing that “reduces length of stay for eligible incarcerated people” and reclassifying low-level drug possession as a misdemeanor.

Burke pledged to lower the retail theft felony prosecution threshold to $300, in line with state law, from $1,000 under Foxx.

Burke also supported increasing penalties for illegal gun possession as well as the use of extended magazines or switches. She committed to pursuing more pretrial detentions for gun crimes as well as for violent crimes on the CTA, pledging to “seek detention each and every time someone has used a gun in a violent felony – armed robberies, carjackings.”

How Burke can make Cook County safer

Enforcing the law as it is written and holding criminals accountable are important parts of a criminal justice system that works for everyone. Burke should take commonsense steps that include:

1. Creating an environment that allows prosecutors to do their jobs. Foxx oversaw incredibly high turnover rates in the state’s attorney’s office, with hundreds of staffers resigning in a matter of months because of dissatisfaction with her leadership.
2. Keeping her promise to lower the retail theft felony prosecution threshold to $300.
3. Only pursuing diversion programs with a proven track record.
4. Restoring to pre-Foxx levels the rate of felony prosecution rejection for driving on an expired or suspended license and other traffic violations. Research from the Manhattan Institute established a link between routine driving or traffic violations and much more serious crimes.
5. Restoring the rate of felony charges being filed to pre-pandemic levels. In April 2020, there were about 500 felony charges filed compared to 2,000-3,000 filed per month before the pandemic as a result of Foxx’s office refusing to prosecute.

Conclusion

Nearly two-thirds of Chicagoans are concerned about public safety where they live, and nearly half think public safety is worse in Chicago than elsewhere in the country. With Foxx declining to seek a third term, Cook County voters have decided to move in a different direction on crime and public safety by choosing Burke. By simply enforcing the law as it is written and restoring pre-Foxx and pre-pandemic prosecution policies, Burke can make good on the people’s mandate.