Mimesis Law
6 March 2021

Debate: Kim Foxx’s Fidelity To Law

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 David Meyer-Lindenberg and Noel Erinjeri with the following question: Is Kim Foxx exercising sound prosecutorial discretion or rewriting the law? ? This is David’s argument:

In England, everything which is not forbidden is allowed. In Germany, everything which is not allowed is forbidden.

-Apocryphal, attributed to Eduard von Oppenheim

Thanks, no doubt, to its status as a former colony, America is still the kind of place where people hold their elected officials accountable. Even by the standards of the Chicago police department, what Officer Jason Van Dyke did to Laquan McDonald on October 20, 2014 was horrendous. And when video emerged in December of last year, over the protestations of Very Official People from the mayor on downwards, Chicago’s residents decided it was time to impose consequences.

One target of their wrath was Cook County State’s Attorney Anita Alvarez, for her alleged role in covering up the McDonald shooting by failing to prosecute Van Dyke while sitting on the video for thirteen months. In March of this year, voters effectively kicked her out of office when she lost the Democratic primary to Kim Foxx, a political neophyte and former Cook County assistant.

Foxx has now taken office, and she’s rolled up her sleeves and gotten to work reforming the criminal justice system.

In her first major policy move since taking office, Cook County State’s Attorney Kim Foxx is dramatically raising the bar for charging shoplifters with a felony crime.

Prosecutors were told 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.

Alright, so first things first. Ten felony convictions before Foxx’s minions will charge retail theft under $1000 as something more than a misdemeanor? If you have ten felonies under your belt, it’s safe to say your poor impulse control and lifelong experience with prison mean the prospect of an eleventh stay behind bars, for shoplifting, won’t do much to deter you from taking that iPhone.

And Illinois’ habitual-offender law means that by the time you receive your tenth felony sentence, you’re probably already looking at mandatory life. Unless you’re the kind of career criminal who managed to get convicted of at least ten crimes that were serious enough to warrant felony charges, but not so serious that your convictions triggered the three-strikes law, Foxx’s proposal turns the concept of felony retail theft into an irrelevancy.

As of now, taking items worth less than $1,000 from Chicago stores is effectively a misdemeanor, full stop. And the new, more lenient shoplifting regime is likely to incentivize people – especially addicts – to steal more and more boldly. In fact, that’s exactly what happened after California voters passed Prop 47 in 2014.

Except that here, unlike in California, nobody cast a vote to amend the law to make it happen. Instead, a government official decided to act by executive fiat.

And then there’s raising the dollar-value threshold for a felony charge, from $300 in most cases to $1000. Again, this was done in total defiance of the law. No legislative body prescribed it. Nobody voted on it. The Cook County DA’s new policy is rooted in no statute and, before Foxx condescended to inform the rest of us, it existed only in her fevered imagination.

Which isn’t to say what she plans to do is necessarily unlawful. Indeed, it may well fall into the category of prosecutorial discretion. When we authorize executive agencies to enforce the law, we hand them a script detailing the kinds of situations in which they’re allowed to take action. If they want to mess with us, we require that they read from the script instead of ad-libbing their own lines. But what we don’t do is force them to get on stage and act.

Rather than exceed her statutory authority to swoop in and interfere with people’s lives, as Massachusetts AG Maura Healey likes to do with groups that don’t share her political philosophy, Foxx has chosen to underperform in her role. Like Bartleby the Scrivener, Cook County’s new DA “would prefer not to” [enforce the law when it doesn’t comport with her criminal-justice feelz].

Prosecutorial discretion is often cited approvingly, as a safeguard against needlessly broad laws. These days, everyone’s in violation of some federal law or other, so to a significant extent, our liberty is already at the mercy of the feds. And when a state legislature, in its quest to rid the world of that month’s worst thing ever, enacts a piece of legislation that criminalizes conduct apart from the Very Bad Thing in question, people who engage in said conduct (like possessing an antique flintlock pistol in gun-phobic New Jersey) are told to rely on prosecutorial discretion to sand away the law’s rough edges. After all, no one would actually arrest and/or prosecute a 72-year-old schoolteacher and antiquarian for owning an item from the Revolutionary War, right?

So why complain if Foxx is choosing to use her unprincipled power of discretion in a way that doesn’t throw quite as many people in prison and brand them as felons for life? At just $300 for a felony charge, Illinois’ retail-theft statute is fairly harsh. Sure, it sucks to be a small business owner and on the giving end of store theft, but Chicago, progressive stronghold that it is, frequently asks its inhabitants to make sacrifices on behalf of others. Are shoplifters so much less worthy of consideration than anybody else?

The only flipside is that people cheering Foxx on for this act of magnanimity will have no principled position to retreat to when she chooses to bring the full weight of the law to bear in other cases. Her predecessor, Alvarez, was a reliable friend to cops, prosecuting people who annoyed them during arrests. When a prosecutor acts without regard to law, it cuts both ways.

In the absence of narrowly tailored statutes, it may very well be advantageous to throw oneself on the mercy of prosecutors. But what a terrible solution that is. The thing about appealing to the king is that there’s no way to predict what mood he’ll be in.

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    27 January 2017 at 9:24 am - Reply

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    6 March 2017 at 9:02 am - Reply

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