Foxx’s presence in Cook County has reassured advocates for bail reform. While prosecutors often undermine the implementation of criminal justice reforms, she has staunchly defended the law against its critics. First elected in 2016 on progressive promises, Foxx reduced her office’s use of cash bail well before the Pretrial Fairness Act took effect last year, even as local defense attorneys pressed her to make even bolder changes. 

But Foxx chose to retire this year rather than seek reelection, leaving the nation’s second biggest prosecutor’s office open for the taking. Voters will now decide who oversees the abolition of cash bail in Chicago for years to come. 

In this staunchly blue county, the Democratic primary on March 19 will likely decide Foxx’s successor, and reform advocates are wary of what this means for the future of pretrial detention. 

“Cook County previously elected a state’s attorney that championed these reforms,” Matt McLoughlin, an activist and cofounder of the Chicago Community Bond Fund, told Bolts. “There are real concerns about who takes control of the largest prosecutor’s office in the state and what role does that individual play in policymaking in the capital.” 

The two Democratic candidates vying to replace Foxx—Clayton Harris III, a former assistant prosecutor, and Eileen O’Neill Burke, a former judge who also worked as a prosecutor—have both expressed broad support for the Pretrial Fairness Act. They’ve both praised the law, and neither is trying to win the election by fearmongering over its effects, a marked difference from other prosecutors’ backlash against bail reform elsewhere in the country, and elsewhere in Illinois.

But O’Neill Burke has also blamed Foxx for being too lenient in some cases, signaling she’d turn the page on the incumbent’s reform priorities. Harris has comparatively aligned himself with the outgoing state’s attorney, whose tenure has seen a considerable decline in the local jail population. Local progressive leaders and the county Democratic Party recently coalesced around Harris as the candidate more likely to continue criminal legal reforms in Chicago.

In responding to Bolts’ questions on pretrial detention, Harris outlined a different philosophy than O’Neill Burke when it comes to how systematically he’d try to keep people behind bars. O’Neill Burke’s campaign declined to respond, but her public statements paint a more punitive picture of how she’d wield the considerable power that the Pretrial Fairness Act gives prosecutors. 

Under the new law, courts can still order someone detained pretrial—but only if prosecutors ask for it. This sets up a new decision point for them: It puts the burden on prosecutors to file detention requests with judges, and then prove at a hearing that the defendant poses either a danger to the community or a flight risk. 

“In effect, the state’s attorney has now become the gatekeeper,” O’Neill Burke told WGN Radio in January. “So it has become exponentially more important that the state’s attorney knows what they’re doing and that they put structure, training, criteria in place.”

Outside of Chicago, some state’s attorneys have taken a hard line in response to the new law, vowing to petition judges to order pretrial detention in every case that’s legally eligible for it, regardless of the circumstances. Patrick Kenneally, the state’s attorney of McHenry County, northwest of Chicago, says his office will ask for anyone charged with an eligible felony to be jailed. 

“We are filing all of those cases because we believe that based on the nature of the charge, that person is self-evidently a danger to the public,” Kenneally, a Republican running for reelection unopposed this year, told Bolts.

For reform advocates who championed the Pretrial Fairness Act, this approach goes against the spirit of the law. “Just because someone is facing an eligible charge, it doesn’t mean prosecutors actually have to have that person detained,” said McLoughlin. “They’re supposed to be using some discretion to determine if that person is a danger to the public.”

McLoughlin added, “At the end of the day, that isn’t about keeping the community safe so much as it is about projecting a tough image of law-and-order.”

For proponents of the Pretrial Reform Act like McLoughlin, the law wasn’t just about ending cash bail, but also reducing the number of people who are locked up in jail. Staying free while awaiting trial allows defendants to keep their jobs, continue supporting their families, and freely meet with their attorney to prepare their legal defense. Pretrial freedom also removes jail as a point of leverage prosecutors often use to pressure someone into taking a plea deal. 

“​​Jailing people awaiting trial increases the rate at which people will be rearrested in the future,” said Sharlyn Grace, senior policy advisor for the Cook County Public Defender’s Office. “It decreases their employment prospects and their earnings potential, and generally contributes to the opposite of what everyone wants for the community.”

O’Neill Burke has partially mirrored Kenneally’s blanket approach for some categories of cases. She has pledged to seek pretrial detention for “each and every” case involving a violent crime, as well as anyone charged with possession of a gun that’s covered by the state’s Assault Weapons Ban. (Gun possession is among the most common felony charges in Cook County.)

Harris has promised an aggressive approach to detaining those accused of violent crimes, but he told Bolts via email that he doesn’t share that blanket approach. The office under his leadership would decide on a “case-by-case basis” whether to seek a detention hearing over violent offenses, he said in a statement emailed by his campaign. 

For gun possession cases, Harris says his office would petition for detention if the gun was used to commit a crime, or if the defendant has a “record of violence.” Elsewhere, echoing a point made by some Chicago public defenders, Harris has expressed concern about the fact that gun possession charges disproportionately fall on Black men, saying they are likelier to carry guns for self-protection. 

For Madeleine Behr, policy director of Chicago Alliance Against Sexual Exploitation, prosecutors should consider their options rather than automatically seek pretrial detention, even in cases of domestic abuse and sexual violence. “For some people experiencing gender-based violence, they often call law enforcement to get the violence to stop in the moment,” Behr said. “But that doesn’t mean they are interested in pursuing charges or a commitment to moving forward with a case for weeks or months or years.” Prosecutors, she said, should “consult directly with the victim for what they would like to see.” 

Whether a prosecutor seeks pretrial detention is only the tip of the iceberg—while it may be the most visible part of their discretion, by that point they’ve already made a suite of other decisions that steer a defendant toward either jail or release.

Prosecutors have always leveraged their power to decide what charges to use in a case. For instance, they may stack charges or start by filing severe ones to pressure a defendant into pleading guilty on lower charges. Under the Pretrial Fairness Act, these charging decisions are also a decisive factor in whether prosecutors are allowed to request pretrial detention at all.

The new law states that courts cannot jail defendants who face some lower-level charges. The provision is meant to limit prosecutors and judges from using the elimination of money bail to increase pretrial detention.

But reform advocates are nervous that prosecutors who want more leeway to detain may respond by filing steeper charges for which pretrial detention is still eligible.

“Differences in charging decisions may be tied to the prosecutor’s desire to have the defendant detained pretrial,” said Ben Ruddell, director of criminal justice policy at the ACLU of Illinois. “If the prosecutor really wants to detain someone pretrial, then they might opt to charge someone” with a stiffer offense than they would have used under the previous system.

James Kilgore, director of advocacy and outreach for FirstFollowers Reentry Program, shares Ruddell’s worry. “One of the things they may do is stack charges and create felonies out of misdemeanors,” he told Bolts. “Whereas before people were going to be kept in jail anyway because they didn’t have bond money, now they have to have a serious charge in order to be kept in jail or on electronic monitoring.”

Here too, O’Neill Burke’s statements signal that she would take a more aggressive stance than the incumbent and her leading competitor. 

For instance, Foxx has set a policy to prosecute retail theft as a misdemeanor, rather than a felony, whenever the value of stolen goods is below $1,000. Harris has said he would continue this policy but O’Neill Burke has denounced it. “Just not prosecuting crime doesn’t deter it, it promotes it,” she told WGN. She says she would charge all retail theft cases where the value exceeds $300 as a felony, as state statutes allow. 

Retail theft charges are not eligible for pretrial detention even at the felony level, so that policy alone would not change the jail population. Still, it provides a window into O’Neill Burke’s interest in dialing up the range of charges her office uses. “I do not believe that they promote a thriving, safe city,” she told the Chicago Sun Times about the Foxx administration’s policies.

Harris, meanwhile, has said he’d give Foxx an “A” for what she’s done during her tenure, saying she has mostly erred in not communicating the benefits of her reforms. 

The next state’s attorney will also steer office policy on electronic monitoring. When they’re not seeking pretrial detention, prosecutors can still ask for release to come with certain conditions, like ankle monitors.

Illinois’ ankle monitor system has been rife with errors; 80 percent of alerts received by local law enforcement as of 2021 were mistaken, a University of Chicago analysis found. Still, a violation may allow prosecutors to ask that the court detain someone. “Given the inaccuracy of these devices and their propensity to create false alarms, this can also be an opportunity to send people back to jail for violating their release conditions,” Kilgore said.

So far, the new system hasn’t resulted in more Chicagoans placed under house arrest as they await trial.

The winner of the Democratic primary between Harris and O’Neill Burke will move on to the general election to face Republican Bob Fioretti, a former alderperson unopposed in his party’s primary. Fioretti has attacked bail reform as dangerous and says Foxx’s office is “erring on the side of letting criminals walk free.”

Fioretti faces long odds in November because Cook County is overwhelmingly Democratic. But sitting prosecutors elsewhere in the state are using similar rhetoric to say the new law is forcing them to release people who should be locked up. They’ve often spread incorrect information to make their case, like Kankakee County State’s Attorney Jim Rowe’s claims that courts can no longer jail fentanyl dealers and carjackers, or McLean County State’s Attorney Erika Reynolds’ statement that misdemeanor domestic violence cases are now ineligible for detention. 

In fact, defendants can still be detained over drug sales, carjacking, and misdemeanor domestic violence, depending on the circumstances.

Opponents of the law have also argued against any bright line that shields some categories of charges from pretrial detention. In 2022, the Illinois State’s Attorney Association, a group that represents prosecutors in the state and typically advocates for more punitive policies, pushed for a bill that is no longer active to allow the court to jail people on lesser charges.

Kenneally, the McHenry prosecutor, wants to make more charges eligible for pretrial detention. 

“My fundamental critique is that, very often times, when people are being charged with these non-detainable offenses, they are in a position to commit more crimes,” Kenneally said. “If their criminal history suggests they will continue to commit crimes, it has taken the discretion of prosecutors and judges to hold those people.”

“We can’t hold somebody on concealing a corpse or concealing a murder, but we can hold them for pushing their boyfriend or throwing a piece of pizza at their boyfriend, and it’s fundamentally absurd,” he told Bolts. (The charge of concealing a homicide is eligible for pretrial detention if prosecutors demonstrate a flight risk.)

This continued conflict over the law’s future would be resolved in Springfield, but the identity of the next Cook County state’s attorney may still shape those developments.

In championing bail reform, Foxx provided a counterweight to the positions of the Illinois State’s Attorneys Association, a role similar to what reform-minded prosecutors have done elsewhere in the country. Cook County alone makes up 40 percent of the Illinois population, and its lawmakers enjoy a lot of clout in the legislature. 

This made Foxx a punching bag for more punitive Chicago officials and other prosecutors, but reform advocates say her pushback against misinformation was essential for the law’s survival. 

“It was hugely important that State’s Attorney Foxx was a supporter of the Pretrial Fairness Act, an advocate and a defender of the law, and a thought partner in its development,” said Grace, of the public defender’s office. “It absolutely matters that we have a state’s attorney who is engaged in good faith efforts to protect this historic transformation of our pretrial system.”

Correction (March 4): The article has been corrected to reflect that the bill to enable pretrial detention for low-level offenses is no longer active.

The post As Kim Foxx Exits, Chicago Is Choosing the Next “Gatekeeper” of Its Bail Reform appeared first on Bolts.

That’s when the Pretrial Fairness Act, which bars judges from making defendants pay money for their pretrial freedom, will finally go into effect. The act, which also creates a new process for prosecutors to petition to keep defendants behind bars, was part of a larger reform bill, the SAFE-T Act, that Illinois lawmakers passed in early 2021 and that sheriffs and prosecutors sued to block, delaying its original implementation date earlier this year. 

But the state Supreme Court found the law to be constitutional in July, paving the way for cash bail to disappear from Illinois courts next week. 

For the advocates who lobbied in favor of the law, some of the hardest work now begins to make sure that it actually reduces jail populations.

Matthew McLoughlin, an organizer with the Illinois Network for Pretrial Justice, said organizers held court-watching training sessions for activists throughout August to monitor implementation and gather information so they can defend the reforms from vociferous critics. He said the group plans to have between 20 and 30 people ready to court watch in nine counties starting next week, including Cook County and Winnebago, which have the two largest county jails in the state, with the goal of observing 75 detention hearings and 100 initial appearances in the first month of the law’s implementation. 

“I really think the advocacy begins now,” McLoughlin told Bolts. “What we’ve found is that if the community doesn’t stay involved, we don’t actually get the outcomes we fought for.” 

In all other court systems across the country, judges can require defendants to pay money as a condition of being released pretrial under the pretense that it will ensure they return for future court dates, a system that keeps people locked up when they are too poor to pay.  Such pretrial detention can have lasting consequences, such as costing people their employment and housing—harms that fall largely on defendants of color who face significantly higher bail amounts. 

For the Illinois activists who have been pushing to end this system, the ultimate goal is not eliminating money bond per se, but reducing the number of people jailed before trial. Court watching is a way to make sure the numbers actually decline. While judges can no longer set money bond after next week, they may still reach for other punitive measures in its place—electronic monitoring, for example, or simply deciding to detain people rather than release them. 

“We are concerned with the spirit of the law being implemented and not just the letter of it, and that’s where court watching comes in,” said Briana Payton, senior policy analyst for the Chicago Appleseed Center for Fair Courts.

Once the law is in effect, if prosecutors want someone to be detained, they will have to file a petition and prove in a hearing that a defendant poses a “real and present threat” to a person or community’s safety or that they are likely to engage in “willful flight” from court dates to avoid prosecution. The hearings must be “individualized and robust,” explained Sharlyn Grace, senior policy advisor for the Law Office of the Cook County Public Defender. People accused of a crime have to be represented by “meaningful” legal counsel, Grace said, which means the accused and their lawyers have to have an opportunity to actually discuss the case together before the hearing. Their counsel must have the opportunity to present evidence and rebut the state’s evidence and case for detention or, in the case of a release decision, against any pretrial conditions like electronic monitoring or drug testing. 

Electronic monitoring or home confinement, according to the law, can only be imposed if there are no other less restrictive conditions that would ensure people come to their court dates and don’t harm others. 

The law allows counties to continue using algorithmic risk assessment tools that purport to rate people based on the risk they pose of committing more crimes or dodging court dates by comparing their characteristics with past court data. These tools are riddled with racist biases, but under the law, the assessments and what goes into them must be shared in open court and counsel can challenge the recommendations. The law says these risk assessment tools also cannot be used as “the sole basis to deny pretrial release.” 

A judge must then make a finding about why a person should be detained or, if released, why restrictive conditions are necessary. The judge’s decision “is transparent and reviewable and can be contested,” Grace said; it can be appealed to a higher court. 

These hearings will be substantially different from what currently happens when someone is assessed for bail. “Right now a lot of bond hearings in Illinois last minutes or even seconds,” Grace said, adding that some have been done over the phone or even email. Those who are represented by legal counsel often meet them for the first time in front of the judge, with little opportunity to explain their side or compile evidence.

The law requires detention hearings to happen in person except for when operational challenges or public health emergencies make remote hearings necessary, although advocates worry the exception will be used too broadly, especially given that the state supreme court recently announced that it will have to use remote hearings to deal with the increased volume of cases when it goes into effect. This new process will also require enough lawyers to represent all of the people going through these hearings. Some counties, Grace said, are under-resourced, but her office, which covers Chicago, created a new division and increased staffing to handle the hearings. “We’re ready,” she said.

The law also limits who will have to go through these hearings. The Pretrial Fairness Act requires that people charged with offenses other than felonies or Class A misdemeanors not be arrested and taken into custody at all, but instead given citations on the spot. It also specifies that people accused of misdemeanors and the lowest level of felonies can be arrested but should then be released from police stations with a court date. Grace said that will mostly apply to offenses like driving on a suspended license, retail theft, and drug possession. Only the moderate or more serious classes of crimes, including domestic violence misdemeanors like simple domestic battery or violations of protective orders, will go through the hearing process where the state can seek detention.

People currently in jail because they haven’t been able to pay a money bond handed down by a judge, meanwhile, will have the option to request a rehearing where they can ask a judge to, under the new law, release them without conditions. At that point the state can file a petition seeking their detention, but it will go through the same hearing process. It’s impossible to know how many will choose to request a rehearing, but “many” of the people in Illinois jails “will be entitled to release because they’re not in there for serious cases,” Grace said—they’re there because they can’t afford to pay bail. 

In addition to fielding a team of court watchers to observe these hearings, advocates are also preparing for the law by raising awareness for people currently in jail who will be entitled to a rehearing starting next week. The Cook County Public Defender’s office recently held a training for all of its attorneys and staff going through the options for people with pending cases. The Illinois Network for Pretrial Justice has designed and printed know your rights guides the size of a business card with information about the new law and, crucially, the new rights people will have when they go through the system. Advocates are planning to distribute the guides to people most likely to be arrested, getting them out at legal aid offices, mental health providers, and harm reduction clinics. “We’re trying to get those in front of as many people as possible,” McLoughlin said, so “people are getting their full rights under the law.” They’re also lobbying for government agencies to send information to people in jail directly. 

It recently became clear that advocates have their work cut out for them after the Illinois Office of Statewide Pretrial Services launched an electronic monitoring program in 70 counties on Aug. 20 as part of its preparations for the Pretrial Fairness Act, despite the law stating that such monitoring should be a measure of last resort. “There is no reason for Illinois to expand its use of electronic monitoring in response to ending money bond,” the Illinois Network for Pretrial Justice said in a statement responding to the ramp-up in electronic monitoring programs. 

Electronic monitoring “defeats the purpose of being released,” Payton told Bolts. “It’s another form of incarceration.”

Through court watching, if advocates see that judges are veering from the purpose of the law by penalizing people who should simply be released, they can raise the alarm with the courts themselves and other people who are responsible for implementation. Community members can protest. Civil rights attorneys can bring litigation. Judges, many of whom are elected, may feel pressure from being watched. Such efforts have been successful before. In 2016, after two people held in the Cook County jail brought a lawsuit challenging the cash bail system for discriminating against poor people, the county’s chief judge instructed judges in July 2017 not to set money bonds that defendants couldn’t afford to pay. But the order had virtually no enforcement mechanism. 

“Right off the jump we knew we needed to be watching the courts like hawks,” McLoughlin said. With the help of roughly 100 people trained to watch courts, his organization exposed several judges who weren’t following the order. 

Court watching will also allow advocates the opportunity to gather insights and data on what happens in courtrooms after the reforms as a way to push back on misinformation and any campaigns to roll them back. Opponents of the Illinois reform, including state Republicans and law enforcement unions, have raised fears that ending cash bail will increase crime, and they unsuccessfully campaigned on the issue during the 2022 midterms. Their efforts, filled with incorrect information, got media outlets to run with the nickname “Purge Law,” after the movie franchise about a 12-hour period when all crime is legal, even using screenshots from the movie in stories. 

A similar reaction greeted passage of a reform in New York in 2019, which barred judges from setting cash bail for most misdemeanors and nonviolent felonies. Studies of New York released this year found that the state’s bail reform, which the GOP and some Democrats have severely criticized, did not increase crime.

People who court watch in Illinois can report back to their neighbors and communities about what really happens after the law goes into effect. Activists also are planning on  canvassing to get the word out about what the law actually does. In late August, they hit local farmers markets to hand out fact sheets and talk to people. They also plan to go door to door, hoping to speak to thousands of people directly. 

All of that organizing could become important very quickly. The Illinois legislature reconvenes in October and November for a veto session, and McLoughlin expects “some half-baked proposals” to roll the law back. He expects to have to defend the law in future legislative and budget sessions as advocates have had to do in New York, where bail reforms have been rolled back twice since 2019. “I think we’re going to be juggling implementation and defense for the foreseeable future,” McLoughlin said. 

“We are under no illusions that our biggest fight is behind us,” Payton agreed. “We know that our biggest fight is ahead of us.”

The post Court Watchers Prepare For the End of Cash Bail in Illinois appeared first on Bolts.

Brown explained that eligible voters in the jail could request and mail ballots, since confinement in jail is one the few situations that allow people to vote absentee in Texas. “Some people would have you think that we’re not allowing people to vote,” the Democratic sheriff continued. “Such is not the case. They are voting. It’s just that they’re not doing so at a polling station.” 

A few months after Brown’s video, in the November midterms, just one person voted from jail via an absentee ballot, according to county data obtained by Bolts, which is in keeping with the historical trends. Roughly 6,000 people are held inside the massive jail on the edge of downtown Dallas. The vast majority are incarcerated pretrial and many are likely eligible to vote, but few actually do. Only two people voted by mail from the jail in the 2016 presidential election. That number rose in the 2020 presidential election but remained a tiny share of the jail population, with 34 people returning a mail ballot.

Dallas activists had asked for a polling place to be installed at the jail for last year’s midterm elections, but faced pushback from some officials, including a county commissioner who called the issue “less than last on my list.” In her message posted to social media last summer, Brown questioned the feasibility of a polling place at the jail and claimed that adding one could compound short staffing at her lockup. 

But activists got their wish this past spring, when officials quietly approved a jail polling place for the May 6 municipal elections. “This is something we have actively been working on for some time,” Brown said in another post. “We are pleased to be able to expand voting for our inmates in Dallas County Jail.”

Twenty people voted in person at this new polling place on May 6. An additional ten returned an absentee ballot from the jail. While an increase from November, especially for generally low-turnout local elections, the numbers are still pale compared to the county’s immense jail population. Brown said in her announcement that her office would use the spring’s low-profile elections to iron out any logistical issues. “The municipal elections afford us the opportunity to do a trial run to fill these gaps,” she said. 

As far back as 1974, the U.S. Supreme Court has affirmed voting rights for people held in pretrial detention who, unlike people in state prisons, haven’t been convicted of a crime. But whether people in local lockups can actually exercise that right often depends on county sheriffs, who run the majority of county jails. 

Nearly all jails make incarcerated people who want to vote request an absentee ballot through the mail and then send it back, which can be tricky given tight deadlines and mail delays. This system also misses people who enter the jail after the deadline to apply for an absentee ballot. In 2020, for instance, the 6th U.S. Circuit Court of Appeals ruled that Ohio officials were not required to help eligible voters incarcerated after this deadline, even though election officials provide voting options for people hospitalized after that deadline. 

“There are a lot of issues with absentee ballots as the primary means for ballot access in custody,” Nicole Porter, senior director of advocacy for the Sentencing Project, told Bolts. “People in mailrooms don’t know how to treat ballots properly… And the jail facility itself lacks training and accountability.”

Activists have played a vital role expanding voting access behind bars by visiting local jails to register eligible voters and provide election day information. But in recent years they have also started pushing for election-day polling sites in lockups.

 In 2020, the Cook County jail in Chicago became the first jail system in the country to install a polling place for eligible voters incarcerated on election day, and voting there continues to rise, with turnout at the jail surpassing the citywide turnout in the June 2022 primaries. The Harris County jail in Houston, the largest in Texas, followed suit with an election day polling place in 2021 after a long campaign from local activists to expand ballot access to eligible voters detained there. Dallas this spring became the second jail in Texas with an election day polling place. 

Still, emails from the Texas Secretary of State’s Office obtained by Bolts under an open records request show how jail and elections staff across the state often question how and even whether to let people vote from jail, a dynamic Bolts has covered elsewhere in the country. The state discouraged at least one large urban county from setting up a jail polling place after Harris County established one; when a county attorney in Bexar County, home to San Antonio, reached out for guidance last summer, an attorney with the secretary of state’s office wrote them back saying, “a jail would not be a permissible polling location.” 

This year, Texas Republicans, ever hostile to expanding ballot access, filed a bill to prohibit polling places in a jail or any other detention facility, but it never advanced. Voting rights activists say changes to voting laws that Texas lawmakers already passed in recent years could compound the problems people face trying to vote from jail, pointing to new absentee voting rules that resulted in more than 20,000 rejected mail ballots during the 2022 midterm primary elections. 

Alex Birnel, advocacy director with MOVE Texas, a voting rights group that pushed for a polling place at the Dallas County jail, told Bolts that, in addition to working with the county sheriff, activists also had to persuade other county officials. “While sheriffs deal with the logistics, you’ve got to be in conversations,” Birnel said. “It cannot be done solo. You need the commissioners’ court and county institutions to be involved.”

Dallas’ Democratic county executive, County Judge Clay Jenkins, eventually backed the idea, and last year he started pushing other county leaders to support putting a polling place inside the jail for the November 2022 midterm elections. “Most Texans agree that voting should be safe, easy, and accessible to all, and while Dallas County has taken several steps to ensure access to the ballot box, there is, unfortunately, one group of eligible voters who have been denied their right to vote for far too long: the over 5,000 pretrial inmates at our Dallas County jail,” Jenkins wrote in an op-ed last September. “Denying thousands of Dallas County voters the opportunity to cast their ballot, as we have done for so long, is wrong, and we need to fix it.” 

A coalition of advocacy groups, including the ACLU of Texas and the Texas Civil Rights Project, kept up the pressure, writing a joint letter to the sheriff after she publicly dismissed the possibility of election-day voting at the jail. “Despite your claim that people in the Dallas County Jail already vote by mail, voting by mail on its own is insufficient to provide people in jail with the opportunity to vote,” the groups wrote in a Sept. 27, 2022 letter. 

“Because people of color are disproportionately incarcerated, denying ballot access to people in jail disproportionately disenfranchises Dallas County’s voters of color,” the groups argued, writing that failing to facilitate election day voting for eligible detainees “may give rise to liability under Section 2 of the Voting Rights Act.” The letter also pointed to the county’s continued reliance on cash bail for determining who is jailed pretrial and said, “because many pretrial detainees are incarcerated solely because they cannot afford to pay bail, there is effectively a poll tax—wherein they must pay bail to vote.” 

While they resisted the idea before the midterms, Brown and other county officials ultimately agreed to election day voting at the jail by the time they were determining polling locations ahead of this year’s municipal elections. When asked if the jail will continue to host a polling place in future elections, the sheriff’s office told Bolts, “Yes, the plan is to continue having a polling location at the Dallas County Jail for inmates and one outside for the public as we did in May.”

As Dallas shifts on the issue, and while Republican lawmakers in Texas continue to create barriers to voting, Porter urged other local officials to prioritize expanding ballot access where they can. “Democracy should be a priority for everybody and access to the ballot should be a priority for anyone who has influence and concern for liberty,” Porter said. “It should be a priority for sheriffs and county officials to guarantee ballot access for people to be eligible to vote during custody. They are humans and eligible.”

The post Dallas County Jail Adds Election Day Polling Place After Pressure from Activists appeared first on Bolts.

Cook County State’s Attorney Kim Foxx—the first Black woman to hold her office and one of the nation’s most prominent reform prosecutors—won a hotly-contested Democratic primary Tuesday night.  

“Tonight the voters have once again spoken and are calling us to continue our mandate of criminal justice reform,” Foxx said in her speech claiming victory. “They are calling us to continue to make  Cook County a model for our country. I pledge to keep pushing for that change.” 

Foxx weathered a challenge from three opponents in the primary. Bill Conway—a former assistant state’s attorney and current finance professor—received $10.5 million from his father, William E. Conway, co-founder of the private equity Carlyle Group, in a bid to unseat Foxx, but the money didn’t do the trick: the younger Conway called Foxx to concede around 9:30 p.m. As of publication, Foxx had 50.42 percent of the vote to Conway’s 31.22, with more than 94 percent of precincts reporting. Former Assistant State’s Attorney Donna More, endorsed by the Chicago Tribune and the suburban Daily Herald, had 13 percent of the vote, and former alderman Bob Fioretti, endorsed by the local Fraternal Order of Police, had five. Within Chicago’s city limits, Foxx was winning a decisive majority of 58 percent of the vote with 91 percent of precincts reporting; in the suburbs, she received 48 percent of the vote. 

Due to the COVID-19 crisis, election day was marked by chaos. Governor J.B. Pritzker had ordered Illinois restaurants and bars to close Monday and schools to close Tuesday, but the election proceeded, prompting conflict between local election officials and the governor. Many polling sites abruptly closed and those that stayed open saw especially low turnout, according to the Sun Times.

Tuesday’s election was viewed as a test for the national movement to elect prosecutors committed to criminal justice reform. Foxx is one of the first progressive prosecutors to face re-election, and allies from elsewhere in the country expressed satisfaction at the result on Tuesday.

Foxx was swept into office in 2016 as voters decisively rejected her tough-on-crime predecessor, Anita Alvarez, who had participated in covering up the police shooting of Black teenager Laquan McDonald. 

As state’s attorney, Foxx helped lower the incarceration rate, sharply reducing prison admissions by 19 percent in 2018. She implemented reform policies aimed at reducing charging and sentencing for low-level offenses, such as retail theft and drug possession, and pursued bail reform. One 2019 study found she had declined to file felony charges in more than 5,000 cases that would likely have been pursued by her predecessor. She also contributed to expunging low-level marijauna convictions, implemented new transparency initiatives, and vacated over a hundred wrongful convictions. 

Throughout the primary season, Foxx faced consistent questions and attacks from opponents over her office’s handling of the case of Jussie Smollett, an actor who allegedly faked a hate crime; Foxx’s office dropped all charges against Smollett abruptly last spring, prompting outrage. A special prosecutor appointed to investigate the situation re-indicted Smollett on six counts in mid February, adding more fuel to the controversy. 

Foxx and supporters said that the heavy focus on Smollett was part of a racist backlash to her reforms. She pulled together a wide spectrum of endorsements, including from Pritzker; Chicago Mayor Lori Lightfoot; local labor groups like the Chicago Teacher’s Union; and national figures like U.S. Senators Bernie Sanders, Elizabeth Warren, and Kamala Harris. While the local activists who helped get her into office have sometimes opposed Foxx’s record from the left, many still supported her bid against less reform-minded challengers. A #CancelConway campaign—seemingly in the style of 2016’s #ByeAnita campaign against Alvarez—ran ads on multiple online platforms, and the hashtag gained steam on social media in the days before the race. 

Two other reform candidates did not fare as well in other parts of the state. In Kane County, a populous jurisdiction in the Chicago suburbs, Junaid Afeef told The Appeal in December that he was running on his background as a public defender and civil rights attorney to champion systemic changes; he lost the Democratic nomination to Jamie Mosser, a prosecutor who did emphasize a goal of setting new diversion opportunities. In Peoria County, newly-appointed incumbent Joni Hoos defeated Chris McCall, a former prosecutor who ran on changing “the status quo.”

Foxx will face Republican primary winner Pat O’Brien, a former judge and assistant state’s attorney, in November. In heavily Democratic Cook County, the Democratic primary usually determines the ultimate winner in countywide races, though the Smollett controversy and pushback from police groups could make the race tighter than usual. Cook County’s last Republican state’s attorney was Jack O’Malley, who served in the early ‘90s.

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Cook County, Illinois: State’s Attorney Kim Foxx announced a shift to treating drug possession writ large (beyond marijuana cases) as a public health matter, with a default of no incarceration. “Incarceration is not treatment, and the Cook County State’s Attorney’s office will no longer address the public health crisis of drug addiction in our criminal justice system,” she said in a Jan. 24 speech. “Diversion will be the presumption in drug possession cases.” In the same speech, Foxx launched a program to “pursue the expungement of all misdemeanor marijuana convictions.” What this means according to the Chicago Citizen is that people will be able to apply for expungement with her office’s assistance without paying an expungement fee, instead of going through the existing process that requires a payment. “Failing to take action that provides relief to those who already have a marijuana conviction is not justice,” she said. Illinois lawmakers are mulling legalizing marijuana, and advocates are pushing for such legislation to contain an automatic expungement process.

Baltimore City, Maryland: Marilyn Mosby, the Baltimore state’s attorney, announced on Jan. 29 that her office would no longer prosecute marijuana possession no matter the quantity. She also said that she would act to vacate thousands of old convictions. In a 14-page white paper, her office laid out her rationale, detailing the “crisis of disparate treatment of Black people for marijuana possession and other offenses without any seeming regard for the possible adverse public health effects resulting from such enforcement.” Interim police commissioner Gary Tuggle said he will still arrest people. “If you are arrested for having and being in possession of a marijuana you will then be released without charges,” Mosby told NPR in response.

St. Louis County, Missouri: St. Louis County’s new prosecutor, Wesley Bell, issued a policy of no longer prosecuting the possession of under 100 grams of marijuana; he will still prosecute larger quantities if he is also accusing a defendant of an intent to sell. Bell’s decision echoes that announced in June by Kim Gardner, the chief prosecutor of the city of St. Louis.

One outstanding question is the persistence of modes of enforcement besides prosecution. In these Missouri jurisdictions, municipal officials can still issue citations that remain on one’s record and result in fines; this has limited the impact of local steps toward decriminalization in the past. When St. Louis made the possession of less than 35 grams of marijuana into an offense for which the police should issue citations in 2014, this has made no dent in the racial disparities in police enforcement. According to the Riverfont Times, 85 percent of people who were either arrested or issued a citation in the ensuing years were Black. This mirrors Baltimore’s past dynamics. In 2014, Maryland as a whole decriminalized the act of possessing under 10 grams of marijuana. But Black residents received 94 percent of the marijuana citations subsequently issued by the Baltimore Police Department between 2015 and 2017, according to the white paper from Mosby’s office; that is virtually identical to the share of people charged with misdemeanor marijuana possession in Baltimore during that period who were Black (96 percent).

Scott Hechinger, senior staff attorney and director of policy at Brooklyn Defender Services, warned more broadly that, absent legalization, marijuana will remain a pretext for heavy-handed policing. “The larger issue is that as long as marijuana is a crime on the books, it will be used by law enforcement as a justification to hurt people,” he said. “Marijuana is one of the primary justifications that allows law enforcement to approach, stop-and-frisk our clients. The claimed odor of marijuana is what makes already-pretextual car stops into full-blown car searches.”

Another matter for continued scrutiny is the manner in which prosecutors will implement their own stated policies. Raven Rakia reported in The Appeal in November that the Brooklyn district attorney, who had announced he would stop prosecuting most marijuana possession cases, was still prosecuting people caught with vaping marijuana oil.

Hechinger, who works in Brooklyn, said that one issue is the mismatch between rhetoric and practices on the ground, but also that prosecutors often leave “exceptions and carve-outs” in their decline-to-prosecute policies such as the amount possessed, whether the person stopped has a record, and the form of possession. If the reason prosecutors adopt decline-to-prosecute policies is the “known disproportionate law enforcement impact on communities of color,” Hechinger said, then it shouldn’t matter who you are and how much you have” because “these carve-outs tend to replicate pre-existing racial disparities” in the prosecution of marijuana possession. “It’s worth always questioning the rationales behind the carve-outs,” he added.

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