criminal justice

Elizabeth Warren Weighs In As Jussie Smollett Case Threatens to Upend Chicago Prosecutor Election

Elizabeth Warren.
Elizabeth Warren. Photo: Scott Olson/Getty Images

Elizabeth Warren announced on Tuesday her endorsement of Kimberly Foxx, the state’s attorney for Cook County, Illinois, whose surprise win over Anita Alvarez in the 2016 Democratic primary launched a wave of “progressive” prosecutor candidates across the United States. It was one of two such cosigns for the Massachusetts senator. She also threw her weight behind Jose Garza in the race for Travis County, Texas, district attorney, where the public defender is challenging incumbent Margaret Moore. Both announcements came as Warren finds herself in a statistical three-way polling tie with Joe Biden and Pete Buttigieg in the Iowa caucuses, and weathers progressive criticism over her praise for life imprisonment as a harsher alternative to the death penalty. Bernie Sanders is leading her in most polls.

The endorsements signal Warren’s growing appreciation for local prosecutor races and their importance to civic health. Faced with a seeming consolidation of left-wing support behind the Vermont senator, Warren has sought to distinguish herself through allyships with black women grassroots activists in cities like Chicago, much of whose advocacy has focused on criminal-justice reform. A large share of their electoral work has involved influencing local prosecutor races. District attorneys and their analogs (elsewhere they’re called state or state’s attorneys) hold outsize power in the criminal-legal system by deciding whom to prosecute, which charges to bring, and how severe a punishment to request from judges, in addition to playing a key role in deciding whether to charge police officers — with whom they work closely — for wrongdoing.

But Warren’s endorsement also comes at a crucial juncture for Foxx. During her roughly three years on the job, Foxx has made strides that would’ve been unimaginable during her predecessor’s punitive tenure. In a county that’s long been wracked by gun violence, particularly in Chicago, Foxx has managed to both reduce crime and reduce incarceration. She’s made it a policy to prosecute fewer low-level offenses — most famously retail theft, for which she doubled the prosecution threshold — while focusing her newly available resources on reducing firearm-related violence. She’s established a Gun Crimes Strategies Unit, a group of prosecutors dedicated to tackling gun violence in police districts with the highest rates. And it’s working. Districts that house GSCU prosecutors have since experienced faster declines in gun violence than their counterparts, mirroring a downward trend in shootings and murders citywide.

All told, it’s been a successful first term by both reformist and more traditional crime-reduction measures, but both are in peril. If you watched Monday night’s primary forum in Chicago, you’d be forgiven for having a different impression of Foxx’s tenure altogether. According to WBEZ, the entire first 30 minutes of the hour-long program, hosted by the Chicago Tribune editorial board, was dedicated to a case that functions mainly as a culture-war hobbyhorse for conservatives: that of Jussie Smollett, the Empire actor who claimed in January 2019 that he was assaulted by two Trump supporters. The case took an abrupt turn after law-enforcement officials investigated and concluded that Smollett was lying and had paid two men to stage the attack. Public sentiment turned swiftly against the actor. Trump himself weighed in to condemn him.

Foxx’s office ignored the outrage and declined to prosecute Smollett. The prosecutor assigned to the case, Joe Magats (Foxx recused herself), said the decision was not an exoneration, but rather that the 16 hours of community service the actor had recently performed and agreement to forfeit his $1,000 bond was sufficient punishment for a nonviolent crime. A trans-partisan cross section of pundits and social-media personalities cried “black privilege” and “leftist privilege,” insisting that Smollett was let off the hook because he was a famous entertainer. That the SA office’s decision not to prosecute was fully in keeping with the priorities and mandates Foxx had laid out during her campaign — and was in the process of executing as head prosecutor — was lost on most of her detractors.

Nevertheless, the case won’t go away. Chicago’s police union staged a protest outside Foxx’s offices in April, many of its members smarting from the embarrassment of dedicating considerable resources to investigating a hoax. Now it’s become a key theme of her reelection campaign. Bill Conway in particular, one of Foxx’s challengers, has brought Smollett up repeatedly, including in ads. The Tribune editorial board has abetted these efforts, dedicating half their forum this week to amplifying a single instance of leniency in a region plagued by over-imprisonment and murder, and a police department that seems unable to solve either. This is hardly surprising. Despite Foxx’s focus on implementing less-carceral reforms during her first election, her victory in 2016 is largely, and perhaps paradoxically, attributable to leniency on her predecessor’s part. Anita Alvarez famously declined to prosecute Officer Jason Van Dyke for murdering 17-year-old Laquan McDonald until a year after the crime, when public outcry over footage of the killing forced her hand. Foxx vowed to hold officers like Van Dyke accountable. She won the primary in a landslide.

The optics of a mostly white panel of opinion writers grilling a black prosecutor because she failed to throw the book at a black man accused of a nonviolent and decidedly victimless crime illustrate the deficit from which Foxx is still operating. Three years of remarkable progress toward her stated goals have won her high-profile endorsements — including from Warren and Chicago mayor Lori Lightfoot — but failed to alleviate skepticism from a criminal-legal establishment and pundit class used to treating prison as the solution to every misdeed. It’s especially disconcerting given her competition. The bulk of Conway’s professional life has been spent pursuing a career in finance, interrupted by a brief stint as a prosecutor. His campaign is bankrolled by his billionaire father, William Conway Jr., whose investment firm the Carlyle Group boasts an almost cartoonishly villainous portfolio, including defense-contracting investments and partial ownership of the company that manufactures the tear gas used on protesters in Ferguson.

Conway too is running as a progressive — despite airing campaign ads notable primarily for restating “tough on crime” orthodoxy in a compassionate tone of voice over soft piano music. Given the abundance of substance and philosophical divergences on which voters could make their choice, it’s telling that conversations around this election have hinged so enormously on Jussie Smollett. Ideally, a national spotlight — like that provided by Warren’s endorsement — will draw attention to its absurdity. But it seems as likely that outrage over Foxx’s leniency will dominate. While meaningful reforms are taking shape in one of the places that they’re needed most, those reforms are being threatened by the very impulses that made them necessary in the first place.

Warren Wants You to Vote in Your Local Prosecutor Election