“Mutual combatants.” 

I was a prosecutor for nearly 20 years and taught criminal law. But I must admit, I’d missed that one and thus had to be, um, edified by the office of Kim Foxx, state’s attorney for Cook County, Ill., and thus responsible for enforcing the law on Chicago’s murder-ravaged streets.

There was a gang firefight in Chicago recently. Well, okay, there’s always a gang firefight in Chicago. This one seemed run-of-the-mill at first. There is internecine strife, I’m sure you’ll be stunned to hear, in the “Four Corner Hustlers” street gang. As a result, rival factions shot it out. Not in the dark of night, but in mid-morning, as though a brisk daylight gunfight were as routine as a jog along the river (provided, of course, that you wear your flak jacket and matching N95 mask). When the dust settled, one young man was dead and two were wounded.


Windy City police rounded up five of the gangbangers and brought them to prosecutors, expecting that each would be charged with commensurately serious felonies, including first-degree murder. The cops, however, were stunned when Foxx’s office released the suspects without any charges.

Why? Did the shooting not really happen? Oh, it happened all right. But there’s apparently a new law non-enforcement standard in Chicago: No indictments, even in brutal crossfire between rival criminals, because those criminals are — yes — mutual combatants.

They’re in gangs, get it? And if you’re in a gang, this is what you sign up for. Next case.

You want to know why violent crime is surging in the nation’s urban centers? Why, as the latest FBI statistics indicate, murder was up an astonishing 30 percent year-over-year in 2020, a record increase? Look no further than the Progressive Prosecutors Project (as I branded it in a March 2020 Commentary essay). This is the radical left’s enterprise to “reform” the criminal justice system by pretending that we don’t have criminals — or, to get so very nuanced about it, to assign blame for all crime on our systemically racist society. 

No, it is not the sociopaths committing the violence, the thinking goes. See, when you really consider it, it’s each of us, right?


Imagine if today’s prosecutors didn’t rationalize this way. Let’s say they weren’t hypnotized under the spell of “disparate impact” analysts, who insist that racism, not crime, explains America’s prison population — which, not coincidentally, has plummeted as felonies have surged. 

Well, then they’d have to wrestle with what, and who, is responsible for the bloodshed. Progressive prosecutors would have to come to grips with the stubborn fact they and their media cheerleaders strain to avoid: patterns of offending.

By the metric of percentage composition of the overall population, young Black males account for a disproportionate amount of the incarcerated population because, as a demographic class, they commit a disproportionate amount of the crime. They account for an overwhelming number of the gang arrests in cities such as Chicago because they are shooting at each other; that means they also account for more of the victims. And shooting each other is something they are certain to do more of, if progressive prosecutors keep coming up with “creative” ways to resist charging them.

These novelties include declining to invoke the anti-gang sentencing enhancement provisions. Though state legislatures enact these laws, prosecutors are effectively and imperiously repealing them because they “disproportionately” punish African Americans (as if defendants were being prosecuted for being African American rather than for committing murder and mayhem). 

Now, evidently, the do-not-prosecute trick bag also includes the flat-out refusal to prosecute on a “mutual combatant” theory — the lunatic notion that killing and being killed is what gang members volunteer for, so who are we prosecutors to intrude?


Here’s an interesting point: If arrests and prosecutions are explained by racism rather than criminal behavior, why rely on the statistics breaking down the races of prison inmates? Why not just say that police departments — even though many are run and heavily staffed by minority officers — are systematically racist, and therefore, must be blinded by bias in making arrests? 

Because progressive prosecutors know that is not how things work. 

In most cases, police do not witness crimes or theorize about who the suspects are. Crimes have victims, and victims file reports identifying the perps. That’s what police act on. And that’s how we know — although progressive prosecutors are preoccupied by their perception of racism against the criminals (which may reflect their own ingrained bias) — it is African American communities that disproportionately bear the brunt of violent crime. Prosecutors like Kim Foxx exacerbate this tragedy when they invent reasons not to address it.  

If you want to know why crime is up, you need to understand why it went down, dramatically, after the high-crime generation from the 1970s into the ’90s. 

Prosecutors and police back then grasped that crime rates were a function of expectations about the rule of law. When prosecutors set the tone by acting against quality-of-life crimes, it signaled to more serious criminals that the community’s laws would be enforced. When serious crimes were committed, police were not told the cases would be dismissed; they were encouraged to conduct interrogations and follow-up investigations that improved law enforcement’s intelligence data bank. That intelligence was carefully and continually studied so that police could be deployed in the places where crime trends were emerging. Order does not need to be re-established if you take pains not to lose it in the first place.

This is not quantum physics. Progressive prosecutors’ dereliction of their duty invites more crime. Professional criminals are recidivists, and if they are repeatedly returned to the streets, rather than prosecuted and imprisoned, they commit lots more crime. The only way to stop it is to stop it. That means enforcing the law, even — or especially, I should say — against the “mutual combatants.”

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.