THE PROSECUTOR’S POWER TO IGNORE:
****Attention Shoppers: As of December 11, 2016, if you are lucky enough to catch a retail theft under $1K in value (even with prior credit), you will be the happy winner of misdemeanor charges redeemable through Kim Foxx and the Cook County State’s Attorney’s Office. ****(Offer valid only throughout Chicago & the Cook County area. Prosecutorial discretion applies, prior credit of 10 or more ineligible to redeem). In December of 2016, Kim Foxx, then freshly elected Cook County State’s Attorney, announced a new policy on charging Retail Theft Offenses. The specific policy guidelines direct:
- Retail Thefts should be charged as misdemeanors, unless:
o Value of stolen goods exceeds $1K; or
o Defendant has 10 prior felony convictions
• Prosecutors retain discretion to review cases & take appropriate action on a case by case basis.
It is well established that Illinois law provides prosecutors with wide discretion in both the initiation and management of criminal litigation. This concept is called “Prosecutorial Discretion.” Kim Foxx’s announcement is this discretion in action. Defense attorneys across the nation often complain about the focus on convictions and the prosecution’s failure to utilize this power more frequently. For this, Kim Foxx’s decision should be applauded.
Currently, the punishment for Retail Theft in Illinois is broken down as follows:
- Retail Theft under $300- 1st Offense- cl. A misdemeanor;
- Retail Theft under $300-Prior conviction- Cl. 4 felony;
- Retail Theft over $300-Cl. 3 felony.
Compared to other Midwestern states, our retail theft felony threshold level of $1K appears harsh and out of touch.
- Wisconsin: >$500 and does not consider prior convictions, only value.
- Indiana: >$750 or the person has a prior retail theft conviction.
- Michigan: >$1K or $200 if you have a prior retail theft conviction.
- Iowa: >$1K and does not consider priors for felony enhancement purposes.
Kim Foxx’s policy puts Cook County in line with the threshold limit of many other states in our region. The current Cook County policy displays how a lone prosecutor can essentially override the legislature. It is the prosecutor’s power to ignore.
Picture this: The Illinois legislature passes a law. That is their constitutional function. The State Prosecutor, on the other hand, is part of the executive branch. They are constitutionally bound to uphold the laws the legislature passes. The prosecutor’s power to ignore arises out of the tension between passing and implementing laws. The Prosecutor, can, and does, as seen in this policy, have the power to override the constitutional process and decide to just not enforce the law as it stands.
This creates a strange legal fiction where laws that supposedly apply statewide have almost no legal effect within the Cook County limits. Cook County likely employs prosecutorial discretion more than any other county in the state. That could be more a result of its size and need for judicial efficiency than anything else. However, it could reflect attitudes towards crime in the contrastingly conservative collar counties and remainder of the Illinois.
While some may see this as open season on retail establishments for chronic thieves, from a practical and public safety perspective, it just makes sense. For example, in 2015, a total of 76 felony retail theft defendants spent more time in jail than their eventual sentence. The approximate cost to the taxpayer: $674,000. In 2016, Retail theft was the 2nd most report crime in Cook County and the crime most likely to be dismissed by the State.
With more higher priority crimes, such as gun violence and homicide, this use of prosecutorial discretion is an appropriate application of resources. It hopefully reflects a shift in culture in the Cook County States Attorney’s office. Not to mention that even prior to this policy change, Cook County prosecutors could offer deferred prosecution program in many first-time felony retail theft offenders. Successful completion of this program results in a dismissal of felony charges. These policies reflect the fact that many retail theft offenders suffer from drug addictions and other issues that contribute to their actions and could care less about what amount puts them in jeopardy of a felony.
If the politicians won’t bring Illinois up to speed on sentencing, thankfully, some prosecutors, like Kim Foxx, aren’t waiting for them to do so. Hopefully more will follow her lead and even expand its use more frequently to other offenses. That’s how prosecutorial discretion works for the people, because after all that’s who they represent.