Sentencing Jussie

An ordinary sentencing takes about 15 minutes, maybe half an hour. But the sentencing of Jussie Smollett lasted five hours, which was par for the course in a case that put together so much of what’s so very wrong about the current climate of criminal law.

At the end of a hearing that lasted about five hours, Judge James B. Linn excoriated Mr. Smollett from the bench, saying that he had concluded that the actor had premeditated the hoax and that despite his and his family’s admirable past work in social justice, he had an arrogant, selfish side and had planned the stunt because he “craved the attention.”

In the searing speech, the judge said that Mr. Smollett’s name had become synonymous with lying, that he had sought to throw a “national pity party” for himself and that Mr. Smollett’s conduct had undermined other victims of hate crimes at a sensitive time, as America was trying to climb out of its painful history of racism.

Not that the judge was wrong, but he’s just a judge, not the moral arbitrator of either America’s “sensitive time” or Smollett’s therapist. Of course, the judge was having his moment on the national stage, sentencing a defendant who “craved the attention” by enjoying a bit of attention of his own.

But then, Smollett did nothing to help his cause either.

Given the chance to address the court before the sentencing, Mr. Smollett declined. But after Judge Linn read his sentence, the actor defiantly stood up and declared, “I did not do this, and I am not suicidal,” adding that “if anything happens to me when I go in there, I did not do it to myself.” As he was taken into custody to begin his jail sentence, Mr. Smollett raised his right fist. His lawyers immediately said they planned to appeal.

Smollett’s lawyers took a more useful position.

During the hearing, the defense and prosecution presented sharply different views of Mr. Smollett’s offense. Prosecutors framed it as a calculated plan to deceive law enforcement and the public at a time when hate crimes were on the rise. Mr. Smollett’s lawyers portrayed it as a minor low-level felony that had been subjected to an outsize amount of prosecutorial attention.

“Why are we jumping up and down and acting like this is a murder case?” said Nenye Uche, a lawyer for Mr. Smollett. “It’s not.”

Indeed, for all the hoopla and outrage surrounding what Jussie Smollett did, and how it played into the national confirmation bias that desperately sought to find proof of racism and homophobia, and pity the poor victim as if being a victim somehow turns someone into a hero, Smollett was convicted of five of six counts of felony disorderly conduct. It’s not murder. But then, he wasn’t given a murderer’s sentence.

At trial, Mr. Smollett had been found guilty of felony disorderly conduct, which carries a sentence of up to three years in prison. The judge decided on a shorter sentence, to be served in a local jail, and also gave Mr. Smollett a term of more than two years of probation and a fine of $25,000. He was also ordered to pay more than $120,000 in restitution for the cost of Chicago’s police investigation of his case.

The jail time was 150 days, and Smollett was taken into custody after sentencing rather than allowed to remain out pending appeal. This presents a problem when the sentence is short, as a defendant can end up serving his full period of incarceration before his appeal is decided, and he doesn’t get that time back, making his appeal to be largely futile. Then again, there are substantial monetary penalties as well, and should he prevail on appeal, a $145,000 difference matters.

The court’s harangue based on the impact of Smollett’s sham on “real” victims of racism could be seen as either him “sending a message,” the general deterrence prong of sentencing factors, or the judge virtue signaling so that his locking Smollett up wouldn’t be viewed as another black guy being burned by the system.

“You took some scabs off some healing wounds and you ripped them apart,” the judge said. “And for one reason: You wanted to make yourself more famous.”

Being famous, and now infamous, is a punishment most defendants will never know. Nor will most black defendants enjoy the pleas of some of their most important and influential brethren.

Before the sentencing, well-known figures like the Rev. Jesse Jackson; Samuel L. Jackson and his wife, the actress LaTanya Richardson Jackson; and Derrick Johnson, the president of the N.A.A.C.P., wrote letters to the judge asking him to forgo prison time. Supporters argued that Mr. Smollett had no previous felonies on his record and that he had suffered reputational damage after the police accused him of orchestrating a hoax assault.

Make up a “hoax assault,” get caught and reputational damage is pretty much guaranteed. The counter argument is that if you don’t want to destroy your reputation, don’t commit the crime. But then, the president of the NAACP rarely writes a letter to the judge for other, more worthy, black defendants. Why support someone who ripped some scabs off the very wounds your organization exists to heal?

This prosecution, and consequently this sentence, reflects a crime that would have been unthinkable in another time. Who would want to fake being a victim? What would someone who have achieved significant success on his talent gain by falsely making himself a victim, a person to be pitied? What sort of national culture would make victimhood an even greater accomplishment than being a star?

The sentence of 150 days is hardly as onerous as it might have been, especially after trial, and a trial where the court found he perjured himself and, adding insult to injury, showed arrogance rather than remorse. But even if incarceration was warranted, wouldn’t 30 days have been sufficient to make the point? Or should it have been years because so many were outraged by this sad, pathetic wannabe victim feeding into a national delusion?

Declaring that he wasn’t suicidal, as he raised his fist as he was taken out of the courtroom, suggests that he’s not done seeking martyrdom. Smollett declared he’s innocent, substantively extremely unlikely but always possible. If not, he’s learned no lesson. Either way, it’s unclear that society has learned any lesson from this case.