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Foxx says new study backs her stance that too many misdemeanor cases are brought to court

Researchers studied nonviolent misdemeanors in Boston and its suburbs and concluded that not prosecuting those types of cases boosted the odds of a person not returning to court with a new criminal offense. Cook County’s court system handles more than 220,000 misdemeanors a year.

Cook County State’s Attorney Kim Foxx.
Cook County State’s Attorney Kim Foxx
Ashlee Rezin Garcia/Sun-Times file photo

Cook County State’s Attorney Kim Foxx says police should heed a new study showing misdemeanor prosecutions increase the likelihood of a person committing more crimes.

The National Bureau of Economic Research released an academic paper Monday showing “non-prosecution of a nonviolence misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years” in Boston and its suburbs.

In the more than four years since Foxx became Cook County’s top prosecutor, she’s emphasized that police should search for alternatives to prosecuting people for non-violent misdemeanors, crimes that carry a penalty of up to a year in jail.

Unlike Boston, where prosecutors decide whether to initiate a misdemeanor prosecution, the police in Chicago and the Cook County suburbs can unilaterally charge a person with a misdemeanor and prosecutors then must decide whether to move forward with the case or dismiss it.

Foxx’s office has turned away thousands of cases that her predecessor, Anita Alvarez, would have prosecuted, including low-level shoplifting cases and drug offenses. Defendants in many of those cases have been diverted into counseling and treatment instead of going to trial or pleading guilty.

Foxx has also set a higher bar for prosecuting felony retail theft. Her office doesn’t prosecute cases involving thefts under $1,000. That prompted some suburbs, like Elmwood Park and Harwood Heights, to add retail theft to their list of ordinance violations, making them offenses that carry fines like traffic tickets, instead of jail. Those jurisdictions decided they were wasting their officers’ time appearing in court only to see their felony retail-theft cases get dismissed by prosecutors.

Foxx said her office handles between 220,000 and 240,000 misdemeanor cases every year, including those from Chicago and the suburbs. “So the question is, is it really in the interest of public safety to initiate these cases in the first place?” she said in an interview. “Surely there’s a way that we can dispose of these cases without having to come into the courthouse.”

She pointed to the Chicago Police Department’s program that diverts people caught with small amounts of drugs to enter drug treatment instead of getting charged with a crime. That program has expanded since it was launched in the Harrison patrol district on the West Side in the summer of 2018.

Foxx said the police also should look for opportunities to divert homeless people who wind up in the court system because a business owner or resident calls the police because they’re a nuisance. That would require the city and county to commit more money to social services that could deal with those people.

“I guess that’s the big question. If a cop responds to a storeowner who wants a drunk person off the sidewalk, what’s the alternative?” Foxx said. “And I think as we talk about repeat offenders, we have to evaluate whether our interventions are making situations better or worse.”

The study was done by Amanda Agan and Jennifer Doleac, economics professors at Rutgers and Texas A&M universities, and Anna Harvey, a politics professor who runs the public-safety lab at New York University. They focused on 67,500 misdemeanor arrests in Boston and the suburbs of Suffolk County, Massachusetts, between 2004 and 2018, excluding violent offenses like assault, battery and domestic abuse. Nearly 80% of those arrests were prosecuted.

“Non-prosecution reduces the rates at which non-violent misdemeanor defendants are charged with subsequent violent offenses by 64%, with subsequent disorder/property offenses by 91%, and with subsequent motor vehicle offenses by 63%,” the study found, tracking a two-year period after those arrests were made.

“Our findings imply that not prosecuting marginal non-violent misdemeanor defendants substantially reduces their subsequent criminal justice contact,” the authors wrote. “These findings are troubling, given the volume of misdemeanor prosecutions pursued in the United States.”

Roseanna Ander, executive director of the University of Chicago Crime Lab, said prosecuting misdemeanors is costly, including the time spent on cops going to court and the expense of jailing suspects.

“Taxpayers certainly are not getting a return on their investment,” Ander said. “I think we’ve created a one-size-fits-all response that really is not appropriate for a wide category of things. I think this research really underscores the real costs of relying on the criminal-justice system to solve things that really don’t belong in the criminal-justice system.”