Kim Foxx's proposal to not charge felonies from certain traffic stops has had success elsewhere

Cook County State's Attorney Kim Foxx has stirred debate since proposing that her office no longer file felony charges when the cases stem solely from minor traffic violations.

Foxx says her intent is to reduce the incentive for police to conduct "pretextual stops," where an officer uses a minor violation to pull over a car in order to find probable cause for another crime. Data shows such stops disproportionately target people of color and rarely result in charges.

Other jurisdictions have implemented similar policies over the last several years and report some success, not only in reducing such stops but rebuilding trust.

“It was indeed the most controversial thing that I had done,” said John Choi, the top prosecutor of Ramsey County, which covers St. Paul, Minnesota.

Two years ago, Choi stepped before a microphone and promised “a better version of public safety and justice” in announcing his office would enact a policy very similar to what Foxx is proposing.

Choi said he used to believe such stops were beneficial for police investigations but said he couldn’t ignore that less than 2% resulted in charges and that Black drivers were being stopped at four times the rate of other drivers in St. Paul.

“For the longest time, we’ve been policing in a way that is going after that 2% but not recognizing the harm that has been done to communities,” he said when he announced the policy.

Choi said he believes the decision has been a resounding success, citing an independent study that showed a drastic reduction in stops for minor violations, particularly among Black drivers.

Spike in traffic stops

The concern over traffic stops by Chicago police has been steadily growing for 10 years or more.

In 2015, the department agreed to curtail the stopping and searching of people on the street, a practice the American Civil Liberties Union contended disproportionately targeted non-whites.

That same year, traffic stops in the city began to rise.

In the four years that followed, police went from conducting around 100,000 stops a year to a 20-year high of 600,000 traffic stops, according to a report by Impact for Equity.

Last year, police conducted nearly 540,000 traffic stops, and more than half the drivers were Black, even though Black people make up less than 30% of the city’s population. Only 14% of the drivers stopped were white.

Perhaps most striking, 96% of the stops did not result in a driver being cited or arrested, the organization reported.

The ACLU has sued the Chicago Police Department again, this time claiming the pattern of traffic stops shows unconstitutional policing.

“The overwhelming majority of these stops have no impact on my office,” Foxx said in an interview with the Sun-Times. “But the implications of those stops, what it means to those individuals … it’s not any less significant to them.”

Foxx estimates only about 1,500 cases resulting in such stops were brought to her office for charges last year.

Drop in Black drivers pulled over

In St. Paul, the number of minor traffic stops dropped 86% overall since Choi announced his new policy. Stops of Black drivers were down 66%, the study showed.

“This resulted in a directive to our officers to focus on driving behaviors that most likely lead to crashes, injury and possibly death,” St. Paul Police Chief Axel Henry said.

Officials have said the policy has had no observable effect on crime rates.

Instead of stopping drivers with a cracked windshield, letters are mailed to the vehicle’s owner and include information on how to get financial assistance for repairs.

An analysis by the Vera Institute, which tracks and advocates for criminal justice reforms, found widespread benefits attributed to such policies.

Philadelphia passed a driving equity ordinance two years ago and saw an increase in guns recovered in traffic stops a year later, despite police officers making 70% fewer stops.

“While racial disparities persisted, traffic stops of the type targeted by the ordinance involving Black drivers were down 54 percent in the law’s first year,” the institute reported, adding that “traffic enforcement is becoming increasingly focused on stopping dangerous driving” such as running red lights.

Ann Arbor, Michigan, and Memphis, Tennessee, have passed similar policies in recent years.

‘Not the right way’

Richard Kling, a professor at Kent College of Law, said he agrees minor traffic stops often target people of color but disagrees with Foxx’s policy because it does not follow state law.

Kling compared Fox’s proposed policy to downstate state’s attorneys who have vowed not to prosecute cases tied to the state’s assault weapons ban. He believes the legal basis for a traffic stop is for the courts to sort out.

“We live in a democratic society where people are elected to do their jobs,” Kling said. “I don’t think they have the luxury of saying we’re not going to follow it because we don’t like it.”

Kling questioned whether prosecutors should be declining to prosecute even minor weapons violations given the concerns about gun violence in the city.

“I appreciate Kim Foxx’s desire to insulate the community of color from being hassled and harassed, which they are, but I don’t think this is the right way,” he said.

Brian Sexton, a defense attorney who formerly led gang and drug prosecutions in Cook County, said he believed the policy will hamper police investigations and lead to an increase in crime.

“She says headlights, a tail light [being out] is not a public safety issue, are you kidding me?” Sexton said.

“I think every case requires looking at it on the merits,” he said, agreeing with Kling that judges should make the determination on whether a traffic stop was justified.

Sexton disagreed with the policy’s premise that officers are using minor violations as a reason to pull over drivers of color.

“I don’t think [officers] are going out and looking for African American of Latino people to pull over for a traffic stop,” he said, noting that police are required to document and justify their stops.

Sexton suggested the racial disparities could stem from increased enforcement in higher crime areas and said he believed people living in those areas want the high enforcement.

But Shay Allen, a criminal defense attorney who also previously worked as a prosecutor in Cook County, disagreed.

Allen said he supported the proposed policy and lauded Foxx’s attempt to do something to address the racial disparities.

Police “can’t close cases because nobody wants to work with them because they don’t trust them,” Allen said.

Allen said it’s easy for police to say, “I stopped them for that headlight. No, you didn’t. You had a ‘gut feeling,’ which the constitution says you can’t do.”

Impact unclear

Foxx’s proposal, which she said is being reviewed by law enforcement partners for feedback, still gives prosecutors wide latitude in approving charges, which they've always had.

The office would decline to charge felonies solely the product of a “non-public-safety traffic stop,” which the office defines as four possible violations: expired registration; missing front license plate; plate not lit properly; single nonworking headlight, tail light or signal light.

Foxx said cases brought by police based on a clear public safety violations, like running a red light or a witness description of a car used in a crime, would not be affected by the policy.

“This policy does not prevent any prosecution wherein a law enforcement agency has conducted a valid and legal stop to facilitate the investigation of a non-possessory crime, such as, for example, homicide, sexual assault, aggravated assault, assault with a firearm, or driving under the influence,” according to a draft provided by the office.

Foxx will be out of office in less than six months, having announced last year she would not seek reelection after two terms as the county’s top prosecutor.

It will be up to her successor on whether the policy would continue.

Eileen O’Neill Burke, a former appellate justice who won the Democratic primary earlier this year, wouldn’t say what she would do if elected and declined an interview to discuss the issue.

A spokeswoman for her campaign said in an emailed statement that O’Neill Burke “is focused on talking with voters about how to build safer communities and looks forward to reviewing all policies when she takes office.”

But O’Neill Burke has been critical of other Foxx policies, particularly one declining to charge simple retail theft of less than $1,000 as a felony. O’Neill Burke said she will go back to the state’s felony threshold of $300.

The Democratic nominee's Republican opponent is former Ald. Bob Fioretti, who said he’ll eliminate Foxx's new traffic stop policy on Day One in office.

Fioretti argued the policy was unnecessary because police stops based on a person's race are already unconstitutional, and “they will not be tolerated under my watch."