Kim Foxx was sworn in as the new Cook County State’s Attorney last week. Yesterday, she made her first major announcement. She announced that her office will not be charging Retail Theft cases as felonies unless the amount that is involved is more than $1,000 or if the defendant does not have anything less than 10 prior Felony Retail Theft convictions. This announcement represents a dramatic shift in policy at the Cook County State’s Attorney’s office. Under current state law, you can be charged with a Class 4 Felony Retail Theft if the amount of the goods involved is more than $300 or if you have one prior felony retail theft conviction. If you have one prior felony conviction you can be charged with a felony even if the amount is under $300. If the amount is over $500, you can be charged with a class 3 felony. Foxx’s announcement drastically raises the bar for what constitutes a Felony Retail Theft in Cook County. Anita Alvarez, Foxx’s predecessor, had been trying to get the State Legislature to raise the bar for charging a felony up to $1,000 for many years now. However, the state legislature has resisted. As a result, the statewide threshold for charging someone with a felony retail theft, as opposed to a misdemeanor, remains at $300. Compared to the other states around Illinois, the Illinois threshold is very low. In Wisconsin the threshold is $500. In Indiana, the threshold is $750.
Foxx’s announcement follows news from last week that Cook County is actively looking at ways of limiting the population at Cook County Jail. There is an understanding that the cost of housing inmates at the Cook County Jail is putting significant stress upon the limited budget resources of Cook County. Last year, approximately 76 defendants who had been charged with Felony Retail Theft, spent more time in jail than what they were eventually sentenced to. The total amount of the excess days served was 4,159. The extra cost to the Cook County taxpayers was about $675,000. Almost 80% of all Felony Retail Theft cases charged in Illinois between 2010 and 2012 were for less than $1,000. As of today, about 101 people are housed at Cook County Jail on Felony Retail Theft charges. The majority of the people that are locked up in Cook County Jail are there because they simply lack the financial resources to post bond. As a result, Cook County taxpayers are footing the bill for their incarceration in the jail.
It remains to be seen what the impact of this announcement will be on retail theft cases. Looking at the reader comments in the local papers today they clearly indicate that this is a controversial decision. What’s disturbing is that some of the comments are clearly racist in nature. Some people will wonder whether the announcement will discourage storekeepers from calling the police if they know that the person they caught stealing from their store will not be charged with a felony. Others are going to argue that this announcement will just encourage people to steal because they know that they will not be facing felonies in Cook County. While prosecutors have always had the discretion to decide when and what to charge someone with, some people will argue that this is more than just an exercise of discretion. It can be argued that the prosecutor is doing an end run around the will of the State Legislature. The same prosecutor’s office that has been unsuccessful in lobbying the legislature to change the law, changes it on its own by exercising its discretion without legislative approval. I would not be surprised to see someone charged with a Felony Retail Theft outside of Cook County argue an Equal Protection violation because the law is not being applied uniformly throughout the State of Illinois.