Were you outraged when the Cook County State’s Attorney’s office announced they dropped 16 counts of felony disorderly conduct against “Empire” actor Jussie Smollett? Or did you shrug and move on with your day? Your answer to that question is going to say a lot about how you really view our modern criminal justice system.
Smollett, in case you’ve been living under a rock, claimed two men in MAGA hats jumped him at 2 AM in Chicago on one of last January’s coldest nights. According to Jussie, the duo kicked him in the ribs, poured bleach on him, strung a noose around his neck and yelled, “This is MAGA country!” In Chicago, of all places. One understands why people would call “bullshit” on these claims from the start, but I digress.
Prominent politicians quickly dubbed the story a “modern day lynching.” Chicago police launched an investigation which led them to two Nigerian brothers Smollett met on the “Empire” set. The brothers claimed Smollett paid them $3,500 via check to help him stage the hate crime, and video apparently shows the two buying supplies for the attack.
Testimony from the brothers, plus Smollett’s hesitance to cooperate with police, led a grand jury to indict Jussie on 16 counts of disorderly conduct based on making false statements to police. Smollett pleaded not guilty, lawyered up and posted a $100,000 bond.
All signs pointed to a trial, until Cook County Prosecutors announced a deal to nolle all charges on March 26 in exchange for two days’ community service and Smollett forfeiting the $10,000 bond money paid to the City of Chicago. Cook County State’s Attorney Kim Foxx justified the deal by acknowledging no length of jail time would satisfy the rage of the unduly passionate.
“There’s some people who were never going to be satisfied unless Mr. Smollett spent many nights in prison,” [State’s Attorney Kim] Foxx said…”Right now there’s a lot of emotion, and I wholeheartedly believe in our line of work we cannot be driven by emotion. We have to be driven by facts.”
Heads are still exploding over this decision. Chicago Mayor Rahm Emanuel denounced the deal as a “whitewashing of justice.” Police Superintendent Eddie Johnson, whose press conference on the initial charges probably didn’t help prosecutors, is livid over the deal.
Though Smollett’s criminal woes are finished at the state level, his legal troubles are far from finished. The FBI’s investigating him for mail fraud. Strangely, Mayor Emmanuel is considering civil litigation to recoup costs from CPD’s investigation. Some talking heads are even peddling a theory Michelle Obama’s Chief of Staff helped sweep these charges away.
If you count yourself among the outraged, try the following remedy. First, take a deep breath. Second, realize this isn’t necessarily a bad outcome in criminal law. Third, understand it doesn’t make it a great outcome either. It’s business as usual for the criminal justice system.
Let’s assume for a moment Smollett managed to leverage his familiarity with the Obamas to make all his criminal woes go away. To quote my mean-ass editor, “Sit down. I have something to tell you, and it’s going to make you sad.” This outcome is rather common if you’re wealthy, privileged, or carry the benefit of status. There are friends of connected families out there daily making phone calls to prosecutors asking for leniency on charges. If you don’t believe that, you’re delusional.
Even if we reject the notion Smollett walked because he knew someone who knew someone, how does calling for harsher punishment help the next person? Various people smarter than me have tried holding the public’s hand on this matter, but the lesson doesn’t seem to get through with the teaching stick, so it’s time to bring out the Angry Chair Leg of Truth.
Harsher punishment or more scrutiny on Jussie Smollett doesn’t necessarily serve justice. What it almost guarantees is the next gay black man charged by the Cook County State Attorney’s Office won’t see the same level of compassion. Kim Foxx is on notice at this point she didn’t punish a celebrity enough for an alleged hate crime hoax. What makes you think her attorneys won’t push for the harshest punishments possible to avoid blowback from the Mayor, the Police Superintendent, and the press?
Perhaps the best service of justice in the aftermath of Jussie Smollett is to remind ourselves this is an outlier. As Ken White once mused, this isn’t the sort of outcome most criminal defense lawyers cheer. It’s “a grim reminder of the brokenness of the system.”
We recognize it as what makes the system impossible for many of our clients to trust or respect. And we know that when there’s a backlash against mercy and lenient sentences…it’s not the rich who pay the price. It’s the ones who never saw much mercy to begin with.
If we care about the nameless person of color standing before a black-robed trier of fact, it’s time we collectively let Jussie Smollett go.