Cook County State’s Attorney Kim Foxx will start asking judges to give early release to some long-serving inmates sent to prison by former administrations under a new resentencing initiative.
The state’s attorney’s office this week filed three resentencing motions, with two more planned for later in the month. Advocates said the hearings, expected next week, will make Cook County the first jurisdiction in Illinois to take advantage of a new state law that empowers prosecutors to identify prisoners whose sentence “no longer advances the interests of justice.”
“We recognize that as criminal justice has evolved, so must our position on these cases,” Foxx said. “And when we look at our incarceration rates, and we look at the history of over incarceration, and where we are now, it’s a matter of truly when you know better, you do better. And so this is an effort by us to … go back and not just acknowledge the wrongs of the past, but try to correct them.”
The small number of cases means the initial impact could be small, but the effort carries significant political risks for Foxx because it turns the conventional understanding of America’s adversarial court system on its head, putting prosecutors and defense attorneys on the same side, pushing for leniency and forgiveness.
Foxx said they are embarking with caution, seeking to prove to the people of Cook County that the early releases will not endanger public safety before expanding the effort. Ultimately, it will be up to judges whether they will grant the motions and what kinds of sentences will be handed out.
Still, the county’s controversial top prosecutor is taking up the initiative at a time when her office is already under fire because of a perception that Foxx is going easy on criminals during a surge in violence.
“I think we have to show people that it works … There are segments of our population who believe, ‘you’ve done the crime you do the time, even if you wouldn’t get that same time today,’ ” Foxx said. “So I think the initial foray into this is to show people what it looks like, to de-stigmatize what the process looks like, to demonstrate that this is actually good public policy and it’s actually good for us as a community.”
Foxx’s office has set narrow parameters around who will be considered for resentencing, focusing on elderly inmates, prisoners who were very young when they offended or people who have served at least 10 years of a sentence for drugs, burglary, robbery or theft. The prosecutor’s office will not consider anyone who is in prison for a homicide or a sex crime.
“I’m always expecting backlash because it’s different than what we’ve normally done,” Foxx said. “Here in Cook County, we have been very much entrenched in a culture with our justice system that had been very punitive, that … the way to fight crime was to just lock everybody up.”
Three Cook County prosecutors are assigned to work on resentencing motions, but they will only be working on the initiative part time. Foxx said her goal is to expand the program so there are dedicated staffers assigned and she said she eventually wants to loosen the criteria for eligibility. She said she did not know how many prisoners might fit the current criteria, but estimated a potential pool of “thousands” of people.
In the meantime, Foxx’s office is getting free legal help from the pro-bono arm of the massive law firm Winston & Strawn. Attorneys there are helping the county identify potential resentencing candidates and then representing them in court if a resentencing motion is filed on their behalf.
In identifying resentencing candidates, the office is looking for people who have stayed out of trouble in prison, achieved educational or career enhancements inside and have solid re-entry plans for when they’re released. Foxx said they are getting input from any victims when considering seeking resentencing and working to ensure the prisoner would not be a public safety threat if released.
“What we will do is work with that individual to identify, ‘Okay, so if you’re going to be released, where are you going to live? What are your employment prospects?’ ” Greg McConnell from Winston & Strawn said. “So we can help the state’s attorney understand what will happen if, in fact, you are released earlier than your release date.”
While the effort has been pitched as a tool to help dismantle mass incarceration, McConnell acknowledged the scale is not nearly big enough to make a dent in the Illinois prison population. The Illinois Department of Corrections reported more than 25,000 people in custody at the end of 2021. McConnell said he was anticipating early releases for about 25 people by the end of the year.
“I don’t think this is a mass incarceration [solution] … I think this is an evaluation of either changing circumstances or changed thinking,” McConnell said.
The Illinois resentencing bill passed the general assembly last summer and was signed into law in July by Illinois Gov. JB Pritzker. It is based on a similar law enacted in 2018 in California, and pushed by former prosecutor Hillary Blout, who founded the advocacy organization For The People.
“I knew that there were several people that I’d prosecuted, and just people in prison that didn’t need to be there. And so I worked on this law, and it’s the first in the country here in California that gives prosecutors this ability,” Blout said.
According to Blout, over the past three years a dozen California jurisdictions have launched resentencing units and more than 100 people have returned home because of the law. Blout’s organization helped lobby for the change in Illinois law, and she said recently they’ve heard from two other Illinois counties interested in starting their own resentencing initiatives.
Despite the relatively small number of inmates released, Blout said the growing effort is meaningful, because it enlists prosecutors in the ongoing fight against what she sees as America’s over-reliance on incarceration.
“Given that prosecutors are one of the most powerful actors in the justice system, to me, it just felt obvious that we should also have prosecutors involved in helping us to solve this problem we have of mass incarceration,” Blout said.