KIM FOXX, DEMOCRATIC CANDIDATE FOR COOK COUNTY STATE’S ATTORNEY

QUESTION 1: These are several areas of criminal sentencing law that help fuel long-term incarceration. While the General Assembly debates these bills, the views of State’s Attorneys are always central to the discussion. That’s why we’d like to ask you for your opinion publicly since it carries so much weight with legislators. Please share your thoughts on each one of these.

Mandatory gun enhancements: Judges must add 15 years to the sentence of someone who possesses but does not use a firearm in the commission of a crime. In 2015, a new law made these enhancements discretionary for juveniles, but not adults. HB4376 (Ford) would make those mandatory gun enhancements discretionary for all offenders. (Do you support, oppose, or are you neutral on the bill? Thoughts welcome.)

Judges and prosecutors utilize their discretion to prioritize the interest of public safety. Mandatory firearm enhancements remove some of that discretion, primarily from judges. There is an important distinction between a person who uses or intends to use a firearm in the commission of a crime and a person who is in possession of a firearm and is arrested for an unrelated crime. With mandatory firearm enhancements, a judge has no choice but to treat those two scenarios the same when sentencing. At a recent subject matter hearing, it was alleged that some prosecutors use the threat of a mandatory firearm enhancement to secure plea deals. By changing the word “firearm” to “dangerous weapon,” on a charging document, a prosecutor can take 15 years off a mandatory sentence. The State’s Attorney’s Office will oppose changes to mandatory gun enhancements.

Felony-murder rule: Illinois has a broad felony-murder statute that allows prosecution of individuals for murder in cases where they did not commit or plan to commit a murder, but committed another forcible felony that resulted in someone’s death. HB1615 (Slaughter) and SB2292 (Peters) would narrow the scope of Illinois’s felony-murder law. (Do you support, oppose, or are you neutral on the bill? Thoughts welcome.)

Three legislative proposals were presented to the State’s Attorney Office; As of now, our current stance is to not weigh in on which – if any – proposal to support. Therefore, we will take a neutral stance.

Accountability: Illinois law utilizes a theory of accountability throughout its criminal statutes. This theory allows individuals to be convicted of the same, more serious crime as their co-defendant/s in an underlying felony, even if they did not directly perpetrate or plan to perpetrate the more serious crime. If convicted, people who are accountable serve the same sentence as the primary actor in the offense. (Do you think we should abolish accountability theory, narrow the usage of accountability theory, or keep accountability as is?)

We should narrow the usage of the accountability theory. This will provide prosecutors more options when taking the circumstances of the alleged offense into account when determining what charges would be appropriate to file. We have seen a multitude of fact patterns that trigger the accountability theory. As prosecutors, it is beneficial for us to tailor the charges to the series of events that led to the alleged offense. I believe that the State’s current accountability theory may at times fail to enable the criminal justice system to do a comprehensive analysis of all parties alleged to be involved with the offense and the extent of their involvement. For this reason the accountability theory should be narrowed to give the criminal justice system the opportunity to take a holistic approach when pursuing justice.

Earned sentencing credits: A 1998 law called Truth in Sentencing reduced or removed the opportunity for incarcerated individuals to earn “time off for good behavior.” The law has led to much longer actual “time served” in Illinois prisons and has removed incentives for rehabilitation. (Do you think we should restore earned sentencing credits to pre-1998 levels, restore some earned sentencing credits, or keep sentencing credits the same? General thoughts welcome.)

The State’s Attorney’s Office has not taken a position on proposed reforms to Illinois’ truth-in-sentencing law, which requires incarcerated persons to serve: either 100%, 85%, or 75% of their sentence, depending on the crime committed. Contrary to some expectations, the initiation of truth-in-sentencing has not resulted in less harsh sentences, but has resulted in more time served.

Mid-sentence parole review: Illinois has true “parole for release” for only a tiny fraction of the prison population (those of any age convicted before the abolition of parole for release in 1978, and those under age 21 convicted after June 2019, pursuant to Public Act 100-1182, the Youthful Offender Parole Law). The remainder of incarcerated people in Illinois do not have access to a parole review hearing at any point in their term of incarceration. What most call parole in Illinois is a post-incarceration period of Mandatory Supervised Release, which is added to a sentence and is not a path to be released earlier than the original sentence.(Should we restore parole as a system for early release broadly, or should we continue with no general parole where the incarcerated serve the entire sentence received no matter what circumstances may have changed?)

Parole is virtually non-existent in Illinois. P.A. 100-1182 created mid-sentence parole consideration for persons serving sentences for crimes committed when they were under 21. The law does not apply to all crimes (particularly sexual assault). Typically parole consideration happens 10, 15 and 20 years after actual incarceration. HB 4273, sponsored by Representative Will Guzzardi would allow the Prisoner Review Board to grant early release for medically incapacitated persons. Unlike other parole provisions, the bill does not allow input from our office.

Abolishing life without parole sentences for all juveniles. Unlike the majority of states, current law in Illinois still allows for a juvenile to receive a life sentence without the possibility of parole, despite young people having unique ability to change. A 2019 law implemented mid-sentence parole review for most individuals convicted of serious offenses before they turned 21. HB5670 (Mayfield) would expand on that law to prohibit life without parole sentences for anyone under the age of 21 when their crime was committed. Juveniles could still serve life in prison if the Prisoner Review Board rejects their application for early release. (Do you support, oppose, or are you neutral on this bill? Thoughts welcome.)

Young people do in fact have the unique ability to change. For this reason, their environment, personal conditions, and the surrounding circumstances of the offense must be taken into consideration when sentencing young people to ensure that their sentence is in line with the time necessary to be rehabilitated. The current law, which is governed by the US Supreme Court Case Miller v. Alabama, provides an opportunity for the court to do a comprehensive analysis of the convicted individual. This analysis takes into account various factors both past and present that contribute to the young person’s conduct.

 

While a multitude of cases does not require young people to serve a life sentence without parole. The option to sentence young people to life without parole is needed for extremely unique cases, which are few and far between. Life without parole should not be the primary option or frequently given. However, recognizing that young people have the ability to change does not eliminate the possibility that there will be young people who do not change, and that inability is an extreme threat to public safety of not just the general public but also their family members. It is important that the criminal justice system has the opportunity to make that assessment when sentencing young people. This position does not however discredit decades worth of research that clearly demonstrates that young people shall be treated differently than adults. I believe that being sentenced for a criminal offense should not equate to being completely isolated from society in inhumane conditions. Correctional facilities must be able to correct harmful behavior in conditions that do not enhance violent behavior and trauma. While HB5670 speaks to the need of this State to minimize the use of life without parole for young people, I believe that alternative options need to be provided to address the few unique cases in which the inability of the convicted individual to change poses a grave threat to public safety.

QUESTION 2: Proactive commutations by the Governor. Our current state prison population of 36,000 remains stubbornly high, largely because Illinois abolished mid-sentence parole review in 1978; people who otherwise might have been released from prison due to rehabilitation no longer have that option. The State Constitution gives the Governor authority to commute any sentence and release any person. Today, commutation is a reactive process. An incarcerated individual must submit a petition for review to the Governor, who tasks the Prisoner Review Board with creating a private recommendation, which the Governor may or may not act upon. Given the lack of mid-sentence parole review since 1978, do you think Governor Pritzker should make the reactive commutation system more proactive to systematically consider commutations? Potential groups to consider for proactive commutation include the elderly (over 65), those who have had excellent records while in prison, or those who have demonstrated remorse and have been rehabilitated but still face decades of incarceration. (Do you think Governor Pritzker should proactively review incarcerated individuals serving long sentences and assign them to the Prisoner Review Board to determine whether their sentences ought to be commuted given their unique circumstances? Do you think he should not do that? Thoughts welcome.)

The Cook County State’s Attorney’s Office (CCSAO) is the second largest prosecutor’s office in the United States. The Office is responsible for the prosecution of all misdemeanor and felony crimes committed in Cook County, one of the largest counties in the United States. Still, our office has to contend with the fact that we have limited resources. With this in mind, when I took office in 2016, I made it a priority to shift our resources to tackle the issues that impact public safety the most, which is violent crime. By directing our attention to violent crime, instead of low-level offenses, our data illustrates that violent crime went down in 2017, 2018, and 2019. In 2020, we are experiencing a year unlike nothing we have ever seen before. In terms of a pandemic, where all of our partners in law enforcement had to critically review jail populations given the public health crisis. In addition, when we witness the surge in violent crime not just in Cook County, but around the country in Miami, New York, Los Angeles, and St. Louis. For individuals that are currently incarcerated there are a few options available for proactively reviewing individuals serving longer sentencing. The legislature and the courts are limited in their ability to re-sentence individuals. Legislation is assumed to be proactive, and even legislation that explicitly applies retroactively faces constitutional, separation of power, challenges. Therefore, given these limitations, our office’s position is that executive commutations may suggest an effective, proactive approach for addressing commutations for individuals serving long sentences.

QUESTION 3: General ideas and personal anecdotes. When you think about our criminal legal system in Illinois (from policing to prosecution to sentencing to incarceration to re-entry), what do you see as the biggest opportunities for improvements in the next two years? Please consider this an open-ended question to share any important anecdotes that inform your perspective or other ideas for reform or improvements that deserve more attention.

Since taking office as Cook County’s State’s Attorney in 2016, I have made measurable progress toward making our criminal justice system fair and safe for each person who calls Cook County home. Under my leadership, violent crime has decreased each year (until COVID-19, as crime has trended upward across the country); I created a Gun Crimes Strategy Unit to get guns off our streets, pushed policies to make sure people of color are not unfairly treated in our bail system, vacated nearly 100 wrongful convictions, and prioritized tackling violent crime. For the first three years in my role as State’s Attorney, Cook County saw fewer violent crimes. My office increased the prosecution of violent crimes and secured over 2,700 more violent felony convictions than my predecessor. This year, due to COVID-19, Cook County is experiencing an unprecedented rise in crime, which is reflective of the trend of increases in crime in major cities and counties across the country as well. The bottom line is we all want to feel safe no matter where we call home, regardless if we are in the middle of a global pandemic. But there’s more work to be done. Changing a criminal justice system that has disproportionately affected Black and Brown people takes time. We must continue to build on the work my office has accomplished to make the system fair for all people. It is my responsibility and commitment to ensure no matter someone’s race, how much money they make, or where they live within Cook County — they are treated fairly and with dignity. In my next term as your State’s Attorney, I am committed to finding solutions to make Cook County safe, equitable and fair for every person by prioritizing violent crime, promoting transparency, and focusing on data-driven policies.

QUESTION 4: Voting rights while incarcerated. Should people who are incarcerated in prison be allowed to vote? Those in county jails (before they are sentenced) are allowed to vote. Vermont and Maine allow those serving a sentence in state prison to vote.

Around the United States, there are increasing concerns about ensuring the right to vote and advocating for policies that protect this cornerstone in our democracy. We are at a critical juncture. The COVID-19 pandemic and the upcoming election are highlighting how local governments around the U.S tactfully deteriorate voting rights for individuals, specifically for marginalized voters. Whether it be discriminatory voter ID laws, misinformation around voting, or the strategic “purging” of registered voters– we need to fiercely protect our right to elect the leaders who represent us. Locally, I support the work of local organizations, such as Chicago Votes, that have become leaders in voter registration and engagement initiatives. Chicago Votes has been coordinating voter registration drives in the Cook County Jail since September 2017 registering over 5,000 new voters. Last year, they passed SB2090 turning Cook County Jail into the first jail in the country that is an official polling location. The bill also requires a voter registration form upon release and a “Know Your Voting Rights” guide to everyone leaving prison. These measures emerging from grassroots organizations and backed by local leaders need to continue to ensure our ability to vote is protected. Ultimately, I am open to discussions about expanding the right to vote, but will need more information from our local partners and stakeholders.

QUESTION 5: There is an ongoing debate over whether the General Assembly has the constitutional authority to pass a law reducing criminal sentences for people already incarcerated. Those who say it’s unconstitutional believe the only two methods to modify sentences are through executive clemency, or a legal procedure called revestment, wherein the prosecution and defense agree to bring the case back before a judge. On the other hand, some argue while those are two legitimate avenues to modify existing sentences, they are not the exclusive avenues, and if the General Assembly wishes to pass a law that reduces existing sentences, the General Assembly is not constitutionally precluded from doing so. In other words, revestment is a path toward modifying existing sentences and it doesn’t preclude legislative action. Please share your opinion on whether the General Assembly has the constitutional authority to pass criminal sentencing changes that affect the currently incarcerated. (This question is particularly relevant to State’s Attorneys, as the leaders of the community of State’s Attorneys have aggressively taken the position that any bill the General Assembly considers that would potentially reduce sentences for currently incarcerated people is unconstitutional.)

When addressing cannabis expungements, the CCSAO found the clearest and most expeditious way to move forward was through the use of the Governor’s clemency powers. The legislature and the courts are limited in their ability to re-sentence individuals. Legislation is assumed to be proactive, and even legislation that explicitly applies retroactively faces constitutional, separation of power, challenges. The CCSAO Appeals Division has argued that the only way for a final conviction to be vacated is (1) by a court due to a defect in proceedings, or (2) by the Governor through his/her pardon power. There are a number of cases stressing the Governor’s exclusive authority in this arena.

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