Why Jussie Smollett Probably Won’t Get Prison Time

Even if he’s convicted, the “Empire” star will likely avoid prison, attorneys say

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Jussie Smollett is unlikely to serve time if he’s convicted of filing a false police report, which he was charged with last week, Chicago-based defense attorneys and other legal experts told TheWrap.

“Empire” star Smollett is charged with a Class 4 felony count of disorderly conduct/filing a false police report. A Class 4 is the lowest kind of felony, and in Illinois carries a maximum of 1 to 3 years in prison. It could also result in a fine of up to $25,000.

“Almost nobody would go to prison on a class 4,” Andrew Weisberg, a former prosecutor in the Cook County State’s Attorney’s Office who now works as a defense attorney, told TheWrap. “I would be surprised if he got [prison] time.”

Weisberg said Smollett is more likely to get probation and be forced to pay restitution to the Chicago police department for time and resources wasted on an investigation. He could also be required to submit to a psychological evaluation and comply with any counseling recommendation, Weisberg added.

Another Chicago defense attorney agreed Smollett was unlikely to spend time behind bars.

“My guess is that he would likely get probation if convicted,” said James E. Fabbrini, of Fabbrini Law Group.

Smollett surrendered to Chicago police early Thursday morning, hours after he was formally charged. He  posted bail and surrendered his passport following a bond hearing in front of State of Illinois Circuit Court of Cook County Judge John Fitzgerald Lykew, and was released Thursday afternoon.

Smollett had to post $10,000, 10 percent of his $100,000 bail. His next court date is Thursday, March 14 at 11:30 a.m.

Laurie L. Levenson, a criminal law professor at Loyola Law School, said that the bail amount was high for a Class 4 felony, but she believes that Smollett was seen as a flight risk because of several factors: He’s accused of staging his own attack, he’s a public figure, and he hasn’t admitted any wrongdoing.

“You don’t typically see bails that high for somebody charged [with] that level of offense,” she said. “He has all of the risk factors that the court would look at.”

The public nature of this case — which was decried by Chicago Police superintendent Eddie Johnson — complicates matters for Smollett, but only in the sense that it’s unlikely he would receive a lighter-than-usual sentence.

“That usually makes it worse for the defendant, because then prosecutors know that everyone is watching,” Weisberg said. “They feel they have to be tougher on the defendant.”

At most, Weisberg speculated, Smollett could get 30 days in a county jail, plus probation, and avoid a longer prison sentence.

Levenson said that even though the case “has been sensationalized,” it’s still a low-level felony. “In the world of criminal offenses, it is not that significant,” she continued. “It’s only significant because of who did it.”

Smollett’s defense team, which includes high-profile attorney Mark Geragos, along with Todd Pugh and Victor Henderson, said in a statement that the actor has been mistreated.

“The presumption of innocence, a bedrock in the search for justice, was trampled upon at the expense of Mr. Smollett and notably, on the eve of a Mayoral election,” the statement said. “Mr. Smollett is a young man of impeccable character and integrity who fiercely and solemnly maintains his innocence and feels betrayed by a system that apparently wants to skip due process and proceed directly to sentencing.”

Levenson said Smollett’s lawyers should tone it down, since Smollett does not have many public supporters right now.

“They have to find something sympathetic about him to play to the court of public opinion,” she said.

A week before Smollett reported the attack, Fox received a letter threatening Smollett. During his remarks last Thursday, Johnson said Smollett sent the letter to Fox himself, though he did not provide evidence. Later that same day, Cook County Assistant State’s Attorney Risa Lanier said that the FBI was conducting forensic analysis on the letter, and that the investigation is still ongoing.

Both the FBI and the U.S. Attorney’s Northern District of Illinois office declined to comment on the status of the investigation, and whether Smollett would face any further charges. It’s possible he could be charged for mail fraud, a felony which carries up to a five-year prison sentence and a maximum fine of $250,000.

But it’s more likely federal prosecutors will let the state go through with its case first, experts told TheWrap.

“It is hard to say whether the feds would actually pursue charges,” Levenson said. “Generally, they follow the petite policy and allow the state prosecutors to go first.” Petite policy refers to a housekeeping provision of the U.S. Justice Department that following a state prosecution there should be no federal prosecution for the same transaction, in the absence of compelling federal interests.

“You can always come up with federal charges, although my guess is that they would leave it to the state here,” added said USC law professor Susan Estrich.