Jussie Smollett Case Gets Even Weirder

The convicted criminal has been released pending appeal.

AP (“Jussie Smollett released from county jail during appeal“):

Jussie Smollett was released from jail Wednesday following six nights behind bars after an appeals court agreed with his lawyers that he should be free pending the appeal of his conviction for lying to police about a racist and homophobic attack.

The former “Empire” actor walked out of the Cook County Jail surrounded by security. He did not comment as he got into an awaiting SUV, but his attorneys said Smollett, who is Black and gay, was the target of a racist justice system and people playing politics.

The appeals court ruling came after a Cook County judge sentenced Smollett last week to immediately begin serving 150 days in jail for his conviction on five felony counts of disorderly conduct for lying to police. In an outburst immediately after the sentence was handed down, Smollett proclaimed his innocence and said “I am not suicidal. And if anything happens to me when I go in there, I did not do it to myself. And you must all know that.”

The appeals court said Smollett could be released after posting a personal recognizance bond of $150,000, meaning he didn’t have to put down money but agrees to come to court as required.

So, the man has been convicted of five felonies. Absent evidence of jury tampering, an obviously biased judge, or the like, he’s presumed guilty. Why would he be freed? Much less out on his own recognizance given that he’s just been convicted of being a fraud? And, given his bizarre outbursts in court, is apparently mentally unstable.

Smollett defense attorney Nenye Uche, speaking to reporters outside the jail after Smollett left, said the Smollett family is “very very happy with today’s developments.” Uche said during his time at the jail, Smollett had not eaten and drank only water, though he did not say why.

He criticized the special prosecutor’s decision to charge Smollett again after the initial charges were dropped by Cook County State’s Attorney Kim Foxx and he paid a fine. He also called Judge James Linn’s sentence excessive for a low-level felony, adding that the appellate court doesn’t “play politics.”

“The real question is: Should Black men be walked into jail for a class 4 felony? Shame on you if you think they should,” Uche said.

He’s been convicted of five felonies. Which, by very definition, are punishable by no less than a year in prison. He’s been sentenced to 150 days and, in all likelihood, would only serve 75. And, frankly, it’s insulting for his attorney to play the race card given the nature of the crime.

The court’s decision marks the latest chapter in a strange story that began in January 2019 when Smollett reported to Chicago police that he was the victim of a racist and homophobic attack by two men wearing ski masks. The manhunt for the attackers soon turned into an investigation of Smollett himself and his arrest on charges that he’d orchestrated the attack and lied to police about it.

Authorities said Smollett paid two men he knew from work on the TV show “Empire” to stage the attack. Prosecutors said he told them what racist and homophobic slurs to shout, and to yell that Smollett was in “MAGA Country,” a reference to the campaign slogan of Donald Trump’s presidential campaign.

The claims were so farcically bizarre that Dave Chappelle did a four-minute bit lampooning Smollett:

Still, the story got national attention for days, wasted untold police manhours, and made a mockery of the whole system.

Special prosecutor Dan Webb recommended that Smollett serve “an appropriate amount of prison time” during sentencing.

“His conduct denigrated hate crimes,” Webb said after the hearing. “His conduct will discourage others who are victims of hate crimes from coming forward and reporting those crimes to law enforcement.”

This is balanced against, what, exactly?

Smollett’s attorneys had argued that he would have completed the sentence by the time the appeal process was completed and that Smollett could be in danger of physical harm if he remained locked up in Cook County Jail.

So, yes, because the sentence was very light, he would have served it before an appeal got heard. So? Having been convicted, he’s presumed guilty under the law. And, frankly, there’s simply zero question that he committed the crimes in question.

As to the dangers of being incarcerated, it’s a real concern. Except it was already being dealt with.

The office of the special prosecutor called the claim that Smollett’s health and safety were at risk “factually incorrect,” in a response to his motion, noting that Smollett was being held in protective custody at the jail.

Further, to the extent that jail is dangerous, that would be true for any convicted criminal. Or, indeed, even those charged with a crime who can’t afford bail. Should we just let them all go home?

As a general matter, I think we over-incarcerate. It’s arguable that alternative sentencing is more appropriate for non-violent offenders like Smollett. Still, 75 days under protective custody in the county jail isn’t exactly life in Shawshank.

FILED UNDER: Crime, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Dave Schuler says:

    And, frankly, there’s simply zero question that he committed the crimes in question.

    Mr. Smollett continues to proclaim his innocence.

    2
  2. Just nutha ignint cracker says:

    This thread gonna turn ugly. It’d be interesting to watch how the characters shake out, but I’ma pass.

    2
  3. Scott says:

    Our entire “Justice” system is messed up. It really is all about how much money you have.

    Not related at all but another example. Our elected Attorney General, Ken Paxton, has been under indictment for over 5 years but is able to throw up roadblock after roadblock to an actual trial because he has political benefactors financing his defense. As an added bonus, he also managed to have an adulterous affair during this time.

    7
  4. drj says:

    he’s presumed guilty. Why would he be freed?

    Look, this isn’t hard. Like, at all.

    * If Smollett’s conviction gets overturned on appeal after he served his sentence, he suffers irreparable harm.

    * If Smollett’s conviction is being upheld and he subsequently serves his 150 days, the state does not suffer irreparable harm by setting him free now.

    * In the meantime, Smollett doesn’t appear to be a danger to society.

    Why be upset about someone being treated fairly by the justice system for once? Not, I hope, because his actions were perceived as “uppity” somehow?

    8
  5. CSK says:

    @drj:
    I’m with you. I don’t like the guy, and I think he’s guilty of what he was accused of doing, but people are freed all the time pending appeal.

    6
  6. MarkedMan says:

    @drj: @CSK: You guys make sense. His appeal was granted.

    2
  7. Sleeping Dog says:

    Smollett, who gives a f___

    and with that, I’m closing the tab for this thread.

    4
  8. Modulo Myself says:

    Funny how being able to afford good lawyers seems to present a stumbling block for law and order folks in America. I mean, there’s no evidence of any sort of bias or favoritism towards Jussie Smollett. This is just how the system works–like it should–if you can afford it.

    4
  9. Slugger says:

    Is this release pending appeal unusual or routine? Dr. Joyner makes it sound unusual, but several commentators say it’s common. IANAL; anybody know?

  10. de stijl says:

    A crap ton of Jan. 6 Capitol Building invaders are free on bond. And their criminal behavior was caught on multiple videos.

    Law And Order selective outrage.

    3
  11. CSK says:

    @de stijl:
    The difference is–if I understand you correctly–that those rioters haven’t been convicted of a crime yet. Smollett is appealing.

    5
  12. gVOR08 says:

    I’d never herd of Smollett until his stupid publicity stunt blew up, and I’d have liked to keep it that way. And I knew last years that our “justice” system was a bad joke. Polling is known to suffer from people feeling compelled to take a side on questions they’d never thought about until asked. The proper answer to many questions is, quoting @Sleeping Dog: ,

    who gives a f____

    1
  13. EddieInCA says:

    Dr. Joyner – You and Rod Dreher are making almost the same points. That should worry you.

    It really should.

    9
  14. de stijl says:

    @CSK:

    The fact that most of them are white has nothing has no bearing on their disparate treatment.

    I don’t really care about Smollett one way or another. He clearly fucked up badly. He was looking for attention and notoriety and had the means to concoct a cockamamie scheme more poorly thought through than the whack Nancy Kerrigan’s knee shenanigans.

    If Smollett were random Jo / Joe Citizen it would have been pled out pre-trial in exchange for a fine and / or probation. No biggie – common, everyday occurrence.

    But this particular case is at the intersection of race and orientation and celebrity and wokeness.

    Smollet specifically wanted to exploit aspects of himself to appear to be a victim for professional gain. He was an idiot. The plan only makes sense if you are wide awake at 3 AM and drunk and stupidly high. In the light of day the scheme makes no sense and would collapse like a house of cards under any reasonable investigation.

    I view it as a weirdly misguided attempt at a call for help. A call for help wrapped in a call for attention. I might be wrong – I am not a mental health professional.

    Still, absent the intersection of factors I noted above, this would have been pled out – 30 days in county and two years probation or thereabouts and done with this nonsense.

    The case got hijacked by political actors to the detriment of us all. It annoys me that I have to pay attention to this workaday idiocy.

    2
  15. CSK says:

    @de stijl:
    Oh, probably. But that’s a little different from the question you initially raised, I think.

    1
  16. de stijl says:

    This is hearsay that I have not investigated.

    Apparently, there is different sets, gradations, tranches of the administrative facts of probation and parole.

    If you were a very bad boy or girl, you have to show up at the office weekly and interact with your PO. Possibly pee in a cup. The sort of situation we often see in movies and tv.

    But, there is also administrative parole where you only have to call in semi-regularily. Totally makes sense: only x number of parole officers to service y number of clients. You sort of have to develop a sorting order for efficiency or the whole system would collapse for lack of parole officer bodies.

    Finally, there is paperwork parole. You don’t have to do jack-shit and they do not pay any attention to you, but if you fuck up again they get to sentence you extra hard. Think that Three Strikes stuff.

    Again, I might have mischaracterized this. I’m relying on hearsay from a guy I know.

  17. mattbernius says:

    @drj:

    * If Smollett’s conviction gets overturned on appeal after he served his sentence, he suffers irreparable harm.

    * If Smollett’s conviction is being upheld and he subsequently serves his 150 days, the state does not suffer irreparable harm by setting him free now.

    * In the meantime, Smollett doesn’t appear to be a danger to society.

    This is pretty much it.

    I do want to highlight something James wrote:

    He’s been convicted of five felonies. Which, by very definition, are punishable by no less than a year in prison. He’s been sentenced to 150 days and, in all likelihood, would only serve 75.

    This is actually something worth unpacking. James is entirely correct that Felonies are upper-level convictions and by their nature are typically punishable with over a year in prison*.

    The fact that Smollett is getting such a short sentence is disturbing for me, not because of length, but because its an example of felonies being inappropriately used. If the court or prosecutor feels that such a light sentence is all that is required, then the charges should have been dropped to misdemeanors in my opinion.

    * -Less than year-long sentences are typically served in county jail (where Smollett was).

    9
  18. Andy says:

    I haven’t followed this closely as I don’t think celebrities matter all that much. I only have two thoughts on this:

    – It doesn’t reflect well on Smollet’s character/mental state that he still denies what he did.
    – My sense is that Smollet is an attention whore and therefore the most effective punishment is obscurity. Sadly the media cannot resist easy clickbait.

    4
  19. CSK says:

    @Andy:
    Well, Smollett has almost certainly torpedoed his acting career, which is ironic, given that he pulled this stunt to boost it.

    3
  20. de stijl says:

    The case that is burning my drawers, now, is Pamela Moses out of Memphis. She got sentenced to 6 years and a day for misinterpreting whether it was okay for her to register to vote.

    The prosecuter was stupid.

    The judge was stupid.

    A waste of resources. If you were wondering, yes, Moses is indeed a black woman. An ex-con.

    A grade A example of disparate treatment and a prosecutor rum amok.

    It is a fascinating and deeply depressing story.

    5
  21. Flat Earth Luddite says:

    @de stijl:

    Well, at this point my knowledge of the system is 40+ years old* but my memory is that I was facing up to 17 years of active parole on release after 3-1/2 years. However, the reality was that I was on active parole for about six months (weekly, then bi-weekly, then monthly) because PO’s had impossible case loads (300-500 per PO). IIRC, after 6 months I was moved to “inactive” parole, which meant I didn’t have to go to his office, but required that I notify them of employment or address changes, don’t leave the state.

    *Whoa. Seriously, just a seriously WTF moment.

    2
  22. Flat Earth Luddite says:

    @mattbernius:
    Indeed. Formula is normally:
    Misdemeanors=sentence of a year.
    5 felonies, under 180 days, in local jail = disparate treatment reserved for the rich and/or famous.

    @de stijl:
    The deeply disturbed voice in the back of my head is hearing “Well, we’ve got to keep that uppity *KLANG* in her place.”
    I want to believe that’s not the case. No, really, I WANT to believe that. But there ain’t any unicorns in the stable…

    5
  23. Gustopher says:

    @de stijl: she also got incorrect advice from the state officials — cannot remember if it was elections folk or parole folk.

    Meanwhile, people who voted for their dead relatives get off with a slap on the wrist when there is no plausible way to think that was legal.

    When arguing your property tax increase, you need to show comparable houses and their assessed values, etc. That might be a good requirement for sentencing.

    I’m not sure if we are a post “pretense of equal justice” country or whether I am just less naive about these things.

    2
  24. mattbernius says:

    @de stijl:
    She’s been awarded a mistrial and will be retried. I need to do an update on that story. Probably tomorrow morning.

    @Flat Earth Luddite:

    Indeed. Formula is normally:
    Misdemeanors=sentence of a year [or less – matt].
    5 felonies, under 180 days, in local jail = disparate treatment reserved for the rich and/or famous.

    Agreed. Though I don’t like the idea of felonies creeping down into under a year for any reason, in part because the long term punative damage of having a felony on your record is really significant. I appreciate that this might be a case of the “rich and famous” treatment. However, its really bad precident.

    It’s also worth noting that some of the limited sentence may be because of the inital plea deal that was later broken by the State.

    1
  25. de stijl says:

    @Gustopher:

    What galls me is the extreme disproportionate response.

    She got confusing advice from city and county offices.

    This could have all been been handled by a letter. Should have been.

    Prosecuting this woman for this “crime” is unconceivably wrong and unjust. It is so stupid and such a waste of resources. 6 years and a day? Are you fucking kidding me? That is ludicrous and shameful.

    The true crime here was perpetrated by the prosector. And the judge. Are they insane? Is this America? Didn’t anyone have one sliver of just common decency?

    I am beyond flabbergasted at this case. It disgusts me greatly.

    It could have all been handled by a form letter. One stamp.

  26. Gustopher says:

    @Just nutha ignint cracker:

    This thread gonna turn ugly.

    I have no idea what you might mean. Also, this is yet another case of Black-on-Black violent crime in Democrat run Chicago…

    The Smollett case has just been the stupidest thing going on whenever it is mentioned.

    1
  27. Gustopher says:

    @mattbernius:

    She’s been awarded a mistrial and will be retried.

    Hooray! This is genuinely good news.

    I need to do an update on that story. Probably tomorrow morning.

    Huzzah! Not as exciting as the above, of course, but your posts are always interesting and far more detailed than most summaries of these things.

    1
  28. de stijl says:

    If you are a judge and sentence a clearly proven guilty person to 6 years, and that is within guidelines for that crime and near the mean norm for that offense, you are doing your job correctly.

    The “and a day” stipulation reeks of arrogance and narcissism and personal pique. Not 6 years, but 6 years and one day. Now, with that specific add on, you are personally inserting yourself into the sentencing to make a point and to be a dick. Purposefully being a dick because you have a gavel. A dick move when you weild a gavel is still a dick move.

    Any standard issue judge would have ruled immediately for dismissal.

    The prosecutor should be ashamed and fired forthwith. She clearly fucked up on the public’s dime.

    The judge, I’m not sure what you can do to judge in Tennessee, get the local bar association to issue a letter of condemnation. Something. Anything. Raise a ruckus about it.

    “Six years and a day”. Fuck you. Fuck you all, you spiteful incompetent petty idiots.

    All it needed was a form letter and one fucking stamp. Grow the fuck up you evil, evil petty morons.

    Where was common sense and common decency?

  29. gVOR08 says:

    @de stijl:

    Prosecuting this woman for this “crime” is unconceivably wrong and unjust.

    Performative MAGAtry. TFG said there’s election fraud, so I’ll be a hero and find some. Kind of blew up on them. But give ’em a break. All the penny-ante fraud they do find seems to be GOPs. They finally found a D, and a Black woman to boot, so it was off to the races.

    1