Mimesis Law
17 June 2019

Debate: Kim Foxx, A Good Thing, Even If A Bit Too Much Of It

December 19, 2016 (Fault Lines) –  Ed. Note: The question was raised whether Kim Foxx, the new Cook County, Illinois, State’s Attorney, who defeated Anita Alvarez, would do any better. Foxx announced some changes to her office’s policy. We charged Noel Erinjeri and David Meyer-Lindenberg with the following question: Is Kim Foxx exercising sound prosecutorial discretion or rewriting the law? ? This is Noel’s argument:

Kim Foxx, newly elected Cook County State’s Attorney has announced that she’s changing her office’s policy on charging felony shoplifting. Illinois law allows shoplifting to be charged as a Class 4 felony (1-3 years) if the value of the pilfered goods exceeds $300; and a Class 3 Felony (regardless of value) if the defendant has been previously convicted of a stealing-related crime.

Foxx, exercising her prosecutorial discretion, has decided to raise the threshold on charging shoplifting as a felony:

Prosecutors were told Monday that retail theft charges should remain a misdemeanor unless the value of the stolen goods exceeds $1,000 or the alleged shoplifter has 10 prior felony convictions — a significant leap from the current standard of a single felony conviction.

Foxx is following through on her earlier promise to focus more resources on violent crimes. The first part of the proposed new policy, not charging a felony unless the value of the stolen goods exceeds $1000, makes sense. The other prong, not charging a felony unless the defendant has 10 prior felony convictions (the article is not clear if that means 10 theft-related felonies or 10 felonies of any type), is waaaay too much of a good thing.

There are a couple of reasons for this. The first is what the economists call moral hazard. As the law is written now, if a homeless guy boosts a sandwich from a gas station today, then gets pinched for stealing another sandwich years later, it could be felony charges. This is a bad idea, but could happen under several possible circumstances:

  1. The prosecutor’s policy is to charge the most serious crime possible, perhaps with a view to lowering the charge as part of the plea bargaining process.
  2. The person making the charging decision (if it’s not the elected prosecutor) has an incentive to make the charges as severe as possible; because they want to be promoted to a more responsible position, and the way to do that is to be tough regardless of circumstances.
  3. It’s an election year, and plenty of prosecutors won or kept their jobs by bragging to the electorate about how much of it they’ve locked up.
  4. Sheer bloody mindedness.

Punishing shoplifting this way can impose a social costs far beyond whatever retributive or deterrent value is gained by making the defendant into a felon. For example:

Illinois has long had one of the lowest thresholds for filing felony retail theft charges in the Midwest, leading critics to argue that too many nonviolent offenders — many of them older and with significant mental health or addiction issues — were locked up at taxpayer expense for months or even years.

As of Wednesday, there were 101 people at Cook County Jail on felony retail theft charges, many of whom have spent months locked up because they can’t afford even a low cash bail, said Cara Smith, policy chief for Cook County Sheriff Tom Dart.

Last year, 76 defendants charged with felony shoplifting spent more time in jail than their eventual prison sentence, serving a total of 4,159 “dead days,” she said.

The extra cost to taxpayers? Nearly $674,000, according to county estimates.

That said, refusing to authorize a felony charge for shoplifting for people with nine felonies is swinging too far in the opposite direction. Foxx’s new policy will have the practical effect of legalizing shoplifting in Cook County. That’s because shoplifting is basically a crime of opportunity; unlike, say, murder or child molestation, that most people wouldn’t commit even if they could get away with it. Stealing, on the other hand, is something that tempts almost everyone at one time or another, so the potential punishment has to act as a deterrent.

It’s a safe bet, statistically speaking, that a defendant who has, say, six felonies has already done some serious time. Plus, for anyone who doesn’t have a felony conviction but has a number of misdemeanor convictions, another misdemeanor conviction isn’t going to worry them too much. At some point, the threat of punishment has to actually be a punishment.

That said, my disagreement with Foxx is one of detail, not fundamentals. To begin with, I would have set the threshold lower, say at three felonies. (Rule of thumb: one felony conviction is bad luck. Two is a coincidence. On the third one, though, we have to at least consider that, circumstances aside, the defendant is a bad apple.)

More than that, I wouldn’t have announced this policy publically. Foxx could have gotten the same effect (reducing unnecessary felony prosecutions) without creating the moral hazard (serial shoplifters thinking “Cha-CHING! Open season!”).

All that said, though, while she might have gotten the details wrong, this is an encouraging sign. Foxx is at least making the attempt to do the right thing, instead of the popular thing. Her tenure is off to an encouraging start.

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