Cook County State’s Attorney Kim Foxx appears on “Chicago Tonight” on Jan. 31, 2023. (WTTW News)
Next week will mark a year since Illinois did away with cash bail — an enormous, precedent-setting dismantling of an early central plank of the criminal justice system. The move was borne of Black legislators’ efforts to systemically uproot racist policies and practices following the 2020 police murder of George Floyd.
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Making the change provoked fresh racism, Cook County State’s Attorney Kim Foxx said Wednesday, in what she called a necessary “honest conversation about what happened in the leadup” of the Pretrial Fairness Act’s implementation.
“I just feel compelled, in my time left in office, to say truths that need to be spoken: It was racist. It was racist,” Foxx said of opponents’ attacks on the law, and her advocacy for it.
Under the Pretrial Fairness Act, most criminal defendants are allowed to remain free pending trial, subject to conditions that courts may impose. But the decision to hold defendants in jail pending trial is based on factors such as the danger the individual poses to the community and the risk that they will flee justice, rather than their ability to pay a cash bond.
Only certain crimes — such as those involving guns and domestic violence — are detainable offenses. Defendants accused of other offenses cannot be kept in jail while they await trial, regardless of other factors.
Foxx said critics “lied about what was happening with the law” leading up to its rollout by describing it as an unruly mess when policymakers had thoughtfully prepared for the change and her office had been studying and preparing for it since 2017. Foxx said “those in positions of power and journalism” failed to call out “racist propaganda” for what it was.
“There’s policy disagreement, and then there is what we saw in relation to this, this legislation, and what we saw wasn’t policy disagreements” Foxx said. “There was so much information, research, data, evidence, proof. But we were stuck on fake narratives about what was going to happen. … I will acknowledge my … bitterness about that. My bitterness about it, because what the stories that were being written were ‘Kim Foxx’ — not this collaboration, not the work that was done — ‘Kim Foxx’s controversial push on bail.’”
The jury’s still out on aspects of the Pretrial Fairness Act, with researchers saying they need more information on aspects such as rates of recidivism, fiscal impacts, and if and when courts are modifying conditions of release. But backers say they’re proud the law has largely met their aspirations of ensuring alleged offenders aren’t jailed because they can’t afford to pay bail, but because they pose a flight or public safety risk.
Asked whether a year in, the law needs any changes including adding offenses to the list of crimes eligible for detention, Foxx said “it’s too soon.”
She said there have been cases “where we believe that this person should have been detained” when they weren’t eligible, but those cases are few and far between, she said, and should not be used to make policy.
Foxx cited last week’s “horrific” murder of four people on the CTA Blue Line. Rhanni Davis was charged with first-degree murder; he had a pocked criminal history.
“Our instinct is to want to go back and be like: How did we get here, right?” Foxx said. “Sometimes it’s some folks who have low-level, nonviolent offenses that do things that shock the conscience that we could never predict for, and then what ends up happening when something like that happens, we want to legislate for the thing that we couldn’t predict for and create bad legislation.”
Rather than act on that impulse “based on statistical anomalies versus what the data is telling us,” Foxx cautioned her successor to “do their due diligence, and look at the data, and not move by headlines and not move by self-preservation.”
After two terms, Foxx is not running for reelection.
Cook County voters in November will decide among Democratic nominee Eileen O’Neill Burke, a former appellate judge who ran a tougher-on-crime campaign; Republican nominee Bob Fioretti, a former Chicago alderperson who said under Foxx the state’s attorney’s office is “a disaster for every person in Cook County except violent criminal”; and Libertarian nominee Andrew Charles Kopinski.
But Foxx said it’s clear that the Pretrial Fairness Act did not cause Illinois to “burn down” like critics threatened it would.
According to new preliminary data from the Loyola Center for Criminal Justice, shared with Chicago journalists Wednesday during a summit organized by advocates with the Illinois Network for Pretrial Justice, crime has not gone up in Illinois since the Pretrial Fairness Act was implemented.
Loyola’s David Olson compared the first six months of last year with this year, and found property and violent crime down both statewide and in Cook County.
“We’re not saying that the Pretrial Fairness Act reduced crime,” Olson said. “We’re also not saying that the drop in crime might not have been larger (had the law not been in effect). But this is at least to put out that crime has not gone up.”
He also shared data that showed jail population decreases of 14% in Cook County, 14% in other urban counties and 25% in rural counties.
Olson found that in the 77 counties working through the state’s pretrial services office, when someone was arrested on a detainable offense, prosecutors did not ask judges for jail time in 43% of cases. Another 36% of nearly 9,000 cases for detention-eligible crimes resulted in detention, and in 22% of cases, prosecutors’ bid to detain an individual got rejected.
The Pretrial Fairness Act — which made Illinois the first state in the nation to completely forgo using money bail as a condition of release for individuals in custody awaiting trial — was part of the 2021 Safety, Accountability, Fairness and Equity-Today law, better known as the SAFE-T Act.
But the elimination of cash bail didn’t take effect until last fall, due to both an intentional delay to give prosecutors, defense attorneys, judges and sheriffs time to adjust, and because of lawsuits that ultimately brought the case to the Illinois Supreme Court, which in a 5-2 ruling last summer cleared the way for the act to begin Sept. 18, 2023.
In his 2022 campaign for governor, Republican nominee Darren Bailey repeatedly warned voters of the “dangerous” changes the law would usher in and said the law would unleash “The Purge” — a reference to a horror film in which murder and other crimes are decriminalized for a day. Fake newspapers published by conservative radio host Dan Proft and mailed free to Illinois residents blared headlines that the law would cause the “end of days.”
During a panel at the media summit in Chicago, Foxx called out the use of images of men with darkened skin showing a woman being attacked which Foxx said were used in campaign ads to “strike fear.”
“It’s not that they just lied,” Foxx said of Pretrial Fairness Act opponents, but she said they intentionally spread misinformation for political purposes that was picked up by mainstream media, and “it was done in a way where race was at the root.”
Bailey called Foxx’s comments “absolutely disgusting” and “pathetic.”
“The only reason she’s bringing up issues is to divert off of her own failures and shortcomings. She is an absolute failure and a disaster for law and order for Chicago and Cook County,” Bailey said. “I completely view someone like Kim Foxx as an enemy of the people … because she is not upholding and protecting law and order for anyone.”
Bailey said figures that show falling crime are lies, because law enforcement’s hands are tied due to the SAFE-T Act and the Pretrial Fairness Act.
He’s no longer a member of the General Assembly, but a year later remains convinced the law is harmful and should be wiped from the statute books.
“I’m just appalled when I find out when someone is picked up or arrested, that seems to be eight times out of 10 the perpetrator is released or let go before the police are finished filling out the paperwork,” Bailey said. “I still think it’s (the law) an absolute disaster and needs to be repealed.”
Bailey said he hears feedback from Chicago-area police he’s still in touch with, but said he’s witnessed the impact of the law in the southern area of the state, where he lives and farms. He said the lack of cash bail has deprived local agencies of funding, hurting their ability to help and deal with suspects who have mental health and other issues.
Foxx on Wednesday compared the 2022 campaign attacks attacks to the Willie Horton ad, featuring a Black convicted murderer, used during former President George H. W. Bush’s 1988 campaign to slam opponent Michael Dukakis as soft on crime, and was so effective that it influenced national crime policy and racial stereotypes for years following.
“The lies, and the racism and the dog whistles and all of the things that played out here, where in history we can go back and look at Willie Horton in 1988 and people will say, ‘Wow, that really changed things,’ and we have, like, this time and distance away to talk about how that was done,” Foxx said. “We don’t need 20 years to talk about what happened with the Pretrial Justice Act. We don’t need 20 years to look at the lies that were told. There were lies that were told.”
Other opponents to the SAFE-T Act, including some prosecutors, members of law enforcement and Republican lawmakers, likewise voiced concerns with how Illinois was going about the elimination of cash bail, with some claiming validation after the Illinois General Assembly amended the original law several times after its initial adoption.
During the panel with Foxx, Cook County Public Defender Sharone Mitchell called attempts to dismantle the act deceptive and “well organized, and it was well-funded, and it was very intentional as well.”
He said it was “scary,” to the point a relative in North Carolina got wind of it and asked him whether he was “involved in a law that legalized murder.”
Note: This article was updated to include comment from Darren Bailey.
Contact Amanda Vinicky: @AmandaVinicky | [email protected]