Below is my column in The Hill newspaper on the dropping of charges against Jussie Smollett. The decision to give Smollett community service and an insulting $10,000 fine has outraged people around the world. Indeed, the City estimates that it spent $130,000 in pursuing the hoax. The costs belie the claim of the Chicago District Attorney that it was merely trying to save badly needed resources. Those resources were already spent in finding the hoax and securing 16 charges from a grand jury. The result is a travesty of justice that shocks the conscience.
Here is the column:
The sudden dismissal of all charges against “Empire” actor Jussie Smollett unleashed a torrent of outrage. Even Chicago Mayor Rahm Emanuel denounced the decision by the Cook County State’s Attorney Office as a “whitewash of justice.”
There is, however, a more accurate term: “celebrity justice.”
On trials ranging from O.J. Simpson to Michael Jackson to Martha Stewart, I have written on the notion of celebrity justice. Indeed, the objection to “celebrity justice” has been heard in the United States for decades, as people question if the law applies as equally to the rich and famous as it does to average citizens.
The answer is that, no, it does not. In most cases, celebrities actually receive harsher treatment and fewer benefits from the criminal justice system.
Yet, there is no other explanation for the absurd decision to drop all charges in the Smollett case. Smollett sent Chicago and the nation into pandemonium over his claim that two men jumped him on a public street, yelling racist and homophobic insults as well as “This is MAGA country!” The idea that Trump supporters beat a gay African American actor and then tied a rope around his neck, unleashed a torrent of condemnation and protest. Smollett appeared in public in apparent brave defiance of those who abused him.
Later, after a citywide search by Chicago police, Smollett’s story began to unravel. He was uncooperative with police and, soon, two brothers were found to have purchased the rope and other key items from a nearby store. They implicated Smollett in the hoax, and a grand jury handed down 16 charges against him.
Smollett seemed destined for a well-deserved prison stint — until the sudden decision to drop all charges for a token $10,000 fine and community service. Smollett promptly walked out of court and proclaimed he was innocent and the attack did occur.
So, there is videotape of Smollett’s co-conspirators buying the materials used for the hoax. There are two witnesses who reportedly implicated him. There is forensic and material evidence undermining his account. The only thing missing was a confession.
The decision to dismiss was announced by Joe Magats, Cook County’s first assistant state’s attorney, who explained that the county stood by the charges and the allegations of a hoax. He said prosecutors simply decided to prioritize “violent crime, gun crime and the drivers of violence” and that “I don’t see Jussie Smollett as a threat to public safety.” The explanation was as forced as it was false.
First, Cook County presumably has not decided to confine prosecutions to violent crimes, or everything from blackmail to bank fraud to tax evasion would be effectively immunized.
Second, this was not just any nonviolent offense. Smollett sent a city into crisis and caused the Chicago Police Department to direct huge resources into the search for racist, homophobic Trump supporters terrorizing innocent citizens. Magats said that the office did not want to use limited resources to go after nonviolent crime, but it already spent those resources in uncovering the hoax and securing 16 charges. All that remained was what looked like a perfunctory trial.
Third, Smollett not only used the hoax to try to improve his professional position, but he maintained his innocence after walking free, and his associates attacked his accusers.
Finally, and most importantly, this was framed as a hate crime. In Chicago, committing crimes from disorderly conduct to harassment “by reason of … race [or] … sexual orientation of an individual or group of individuals” is a hate crime. Smollett triggered fear of racist, homophobic attacks through a premeditated, coordinated hoax. His motivation was to use race and sexual orientation to commit a fraud on the city.
The view of the Cook County District Attorney’s office appears to be that if you use race or sexual orientation to terrorize or abuse an individual, you will face serious jail time, but if you fake the same attack to use race or sexual orientation to terrorize or abuse a city, you are forgiven with a small fine.
While Smollett can claim that his was not a hate crime because he did not specifically target a victim, his actions had the same impact on the city.
Magats could claim he was applying blind — not celebrity — justice by securing a plea as in any other false-report case. However, most false reports are not calculated to inflame unrest over racist or homosexual intolerance. Most do not involve an international outcry and an unrepentant defendant. Hopefully, the prosecutors at least scored an autograph, because they walked away with little else.
As someone who has long questioned the mantra of “celebrity justice,” this month is unsettling not only because of the Smollett decision but because of the ongoing controversy surrounding the treatment of sexual abuser Jeffrey Epstein.
Epstein was given a ridiculously light plea deal for sexual abuse of underaged girls. The deal came as various powerful figures, including Bill Clinton, were named as travelers on Epstein’s infamous “Lolita Express” flights to his private estate on the Caribbean island of Little Saint James with young girls who allegedly were used as prostitutes. Epstein had the foresight to implicate powerful men in his activities and, when facing a public trial, then U.S. Attorney (and now Labor Secretary) Alexander Acosta cut him an absurd deal to avoid serious jail time and seal the record. The deal was recently declared unlawful — but Epstein avoided a long sentence, his friends avoided an embarrassing trial, and Acosta was later given a cabinet position.
Epstein received special treatment, and his victims were not only denied knowledge of the deal cut with Acosta but denied any semblance of justice.
Celebrity justice is often the ill-informed explanation of acquittals of famous persons. The first “Trial of the Century” in 1921 of film star Roscoe “Fatty” Arbuckle, for allegedly raping and killing showgirl Virginia Rappe, resulted in acquittal, as did cases against stars like Michael Jackson and Robert Blake. However, these cases had critical flaws — and other celebrities, such as Martha Stewart, were convicted on cases that were overcharged.
Prosecutors often relish the opportunity to try a celebrity, and their concerns about “celebrity justice” criticism push them toward overcharging cases. Some cases, however, are distorted by the pull of influence and power before trial. That was the case with Epstein, which produced a grotesque result; he used backchannels to secure a secret deal with Acosta — a deal recently declared by a federal judge to have violated federal law.
Smollett may also have turned to such backchannel efforts. News reports have alleged that Michele Obama’s former chief of staff, Tina Tchen, and another Smollett associate contacted Cook County State’s Attorney Kim Foxx to seek her intervention in the case soon after the scandal broke. Foxx is accused of keeping the Smollett team informed of developments, and she later had to recuse herself. That left the matter to her subordinate, Magats, who cut a deal for Smollett that drew a rare public rebuke from the mayor and the Chicago Police Department — as well as international outcry.
Smollett may have benefitted from a simple failure of prosecutorial judgment or a raw example of celebrity justice. Like the Epstein case, it is not clear if the problem was an absence of blind justice or of equal justice. What is clear, however, is that this represents a travesty of justice.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.