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Prosecutors face pushback for what critics call a lenient response to unrest

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(NEW YORK) — Several top prosecutors have faced pushback in recent weeks for what critics say has been too lenient a response to unrest, including looting.

The Cook County State’s attorney, Kim Foxx, was among the latest to face criticism after looting and violence overtook the streets of Downtown Chicago early Monday.

Several Chicago officials this week charged that Foxx’s progressive reforms, such as raising the bar for felony charges in retail theft, have led to repeat offenses in recent months.

“These looters acted as if there are no consequences to their behavior, and they based that on what happened previously, that we made a lot of arrests during May and June, and not many of those cases were prosecuted to the fullest extent,” Chicago Police Superintendent David Brown said at a press briefing Monday.

“These criminals were emboldened by no consequences in the criminal system,” he added.

Chicago Alderman Brendan Reilly, whose ward includes areas where Monday’s unrest occurred, said in a letter to his constituents on Monday that he agreed with Brown.

“[It] is clear that there is no accountability or consequences for the widespread lawlessness in the City of Chicago,” he said.

The president of the Chicago Fraternal Order of Police also called for looters to be fully prosecuted this week.

Following Monday’s arrests, Foxx said those who broke the law would be held accountable. On Thursday, her office announced it had approved 42 out of 43 felony charges sought by the Chicago Police Department stemming from over 100 arrests in the looting. Felony charges included 28 for burglary/looting, six for gun possession, five for aggravated battery/resisting a police officer and one for attempted murder.

“I am committed to keeping our communities safe and continuing to collaborate with our law enforcement partners to demand accountability and seek justice for the people of Cook County,” Foxx, who is up for reelection for a second term this fall, said in a statement announcing the charges.

Cases are still being reviewed and investigated by law enforcement, and her office will file more felony charges if appropriate, the statement said.

In Portland, Oregon, which has seen more than 70 days of nightly protests following George Floyd’s death while in police custody, the city’s top prosecutor has recently faced demands to “hold the rioters accountable.” In an Aug. 7 letter to Multnomah County District Attorney Mike Schmidt and Mayor Ted Wheeler, the head of the Portland Police Association, called on Schmidt to “do your job.”

“The people committing arson and assault are not peaceful protestors; they are criminals,” Daryl Turner, president of the association, said. “Step up and do your job; hold the rioters accountable. If there is no consequence for crimes from the District Attorney’s office, there is no reason for criminals to stop the chaos.”

Days after the letter, Schmidt announced his office would only prosecute cases of demonstrators if the crime involved “deliberate property damage, theft or the use or threat of use of force against another person.” Offenses such as disorderly conduct, criminal trespass and interference with a police officer would otherwise be dismissed.

“This policy acknowledges that the factors that lead to the commission of criminal activity during a protest are incredibly complex,” Schmidt said at a press briefing announcing the new policy on Tuesday.

Schmidt said the new policy is part of an effort to build trust in the community and better allocate resources. He stressed that “this is not a free pass.”

“I will not tolerate deliberate acts of violence against police or anyone else,” he said. “Engage in that type of conduct and you should expect to be prosecuted.”

The new policy is retroactive for those who have been arrested during protests in the wake of Floyd’s death in Minneapolis in May. The district attorney’s office said Tuesday it has received about 400 misdemeanor cases related to the protests, a majority of which will likely be subject to the new policy.

Portland’s policy is akin to one rolled out in New York during the early days of the city’s protests against police brutality. In early June, Manhattan District Attorney Cy Vance announced he would decline to prosecute protesters arrested for unlawful assembly and disorderly conduct. The policy, his office said, was designed to preserve resources for more serious crimes and “reduce racial disparities and collateral consequences in low-level offense prosecutions.”

Around that time, Vance’s office also faced pushback for not charging alleged looters with higher burglary offenses, allowing them to be released amid new bail reform measures. New York Gov. Andrew Cuomo called on prosecutors to charge the looters with second-degree burglary and said that “they should be held and set bail.” In response, the district attorney’s office said there often wasn’t enough evidence for a more serious charge.

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