Halsey Frank: Regressive justice


It’s hard to decide who is worse, actor Jussie Smollett, who faked a racist and homophobic attack in order to promote himself, or Cook County Illinois State’s Attorney Kim Foxx, who treated Smollett leniently seemingly because of his race and sexual orientation.

For anyone who doesn’t know, Jussie Smollett is an actor who played a part in the TV series “Empire.” In January of 2019, Smollett reported that he was attacked by two white men because he was Black and homosexual. Smollett reported that his attackers wore ski masks, poured an unknown liquid on him, put a noose around his neck, and taunted “this is MAGA country.” The Chicago Police investigated and arrested two Nigerian brothers for the attack.

Politicians and pundits were quick to use the case to lament our country’s bigotry.

As the police continued to investigate, they became persuaded that Smollett had staged the attack, perhaps because he was mad that the producers of “Empire” had not taken more seriously his dubious report that he had received a threatening letter containing a white powder. Smollett became uncooperative. When the investigation switched from one in which Smollett was the victim to one in which he was the suspect, State’s Attorney Foxx said that she would recuse herself because she had been communicating about the case with Smollett’s sister and other supporters.

In February of 2019, the Cook County State’s Attorney Office (CCSAO) obtained an indictment charging Smollett with sixteen class four felony counts of making a false report of an offense. Illinois class four felonies are punishable by up to three years of imprisonment. That March, the CCSAO dismissed the case in exchange for Smollett agreeing to forfeit as restitution $10,000 and perform 15 hours of community service. The judge sealed the case file. (It has since been unsealed.)

In response to public outrage, suspicion of favoritism, and a petition, in August of 2019, a different judge appointed Dan Webb special prosecutor to investigate whether the CCSAO engaged in any wrongdoing in the way that it handled the case, and whether Smollett should be further prosecuted. 

Webb conducted an extensive investigation and wrote a report. In February of 2020, he obtained an indictment charging Smollett with six counts of class four felony disorderly conduct. The case went to trial this past November.

Smollett took the stand in his own defense at trial and testified under oath for hours. He denied fabricating the attack and asserted that it was a real hate crime. He admitted that he knew his attackers because he had hired them for personal training and nutritional advice. Notwithstanding that preexisting relationship, Smollett claimed that his attackers were motivated by homophobia and by a desire that Smollett hire them as security guards. He explained that he misidentified his attackers as white because he assumed they were white. He didn’t cooperate with the police because as a black man he doesn’t trust the police.

The jury didn’t believe him. They convicted him for five of the six counts.

When sentenced to 150 days in jail, Smollett was unrepentant and defiant. He proclaimed his innocence. His attorneys vowed to appeal. Five days later, an appellate court granted his request for release because it would not be able to decide his appeal before he completed his sentence. Smollett’s appellate arguments may include that the special prosecutor was improperly appointed, and that the special prosecution was precluded by double jeopardy or, as in the case against Bill Cosby, because Foxx made Smollett promises that bound the special prosecutor.

Reversal on procedural grounds would be unfortunate because Smollett’s behavior was so reprehensible. At a time when people’s faith in our country is wavering and the belief that our country is irredeemably racist is ascendant, he used his position of prominence to falsely claim to be the victim of a racist and homophobic attack, for the most venal of motives. It doesn’t get much worse than that.

But that isn’t all. As a further result of his investigation, Webb concluded that the CCSAO did not handle Smollett’s case like other similar cases. It gave the case favorable treatment in the respects that it did not require Smollett to plead guilty or admit the fact that he had made a false report. It did not require him to pay the full amount of restitution (the police calculated that it wasted over $130,000 to investigate Smollett’s claims). It did not require him to spend a year under court supervision.

Webb also concluded that State’s Attorney Foxx did not actually recuse herself and refer the case to an independent special prosecutor as she was advised she was required to do under Illinois law. She did not completely wall herself off from the prosecutors in her office handling the case. She continued to communicate with Smollett’s sister and his supporters.

Beyond that, Webb concluded that the CCSAO made false and misleading statements to the public about Smollett and his case, including that Smollett had no criminal record which was relevant to whether or not he was treated similarly as others. In fact, Smollett had been convicted of making a false statement to the police before. The CCSAO falsely stated that $10,000 was the most that Smollett could be ordered to pay under any circumstances, when Illinois law makes a convicted defendant liable for the full amount of restitution.

It also falsely stated that it dismissed the case because of evidentiary problems. Foxx misled the public into thinking that she had recused herself and had stopped communicating with Smollett’s sister and his supporters. The CCSAO falsely stated that it was treating Smollett’s case like other similar cases.

The overwhelming impression created is that Cook County State’s Attorney Kim Foxx treated Jussie Smollett more leniently than others because Smollett was Black and homosexual. That is contrary to the ideals of our criminal justice system. It is also emblematic of the progressive law enforcement reform movement.

At various other times and places, people exacted retribution for wrongs as they were able, not according to any higher principle. The rich and powerful and beautiful and connected got satisfaction. The weak and poor and ugly and outcast got mistreated and worse.

Our system is supposed to be better. We try to reward people for doing good things, not for who their parents are, what their name is, what they look like, where they grew up and went to school, who they know, or how much money they have. We try to treat people according to the law and the facts of their behavior, not bias or prejudice.

We punish people for committing bad acts with bad intent, not because of the color of their skin or their sexual orientation. We punish them to give the law force and effect, to keep the peace, maintain order, protect the public, vindicate the rights of the victim, and in the hopes that the guilty will reform themselves. We show leniency to people who admit wrongdoing because we believe that is the first step toward rehabilitation. We worry that people who don’t learn their lesson are incorrigible, that people who falsely profess their innocence are contemptuous of the law and the society that made it.

After the court of appeals granted Smollett’s request for release, State’s Attorney Foxx defended her handling of the case. She called the special prosecution excessive, mob justice, and a kangaroo court. She said that the justice system failed.

She couldn’t be farther from the truth. When we abandon our principles of justice and show favor to certain people as Foxx did, we are regressing to the injustices of the past. When we try to right those wrongs and hold people responsible for their actions as did special prosecutor Webb, we are being true to our ideals.

Photo: Dominick D, CC BY-SA 2.0 https://creativecommons.org/licenses/by-sa/2.0, via Wikimedia Commons

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Halsey Frank was born and raised in and around New York City and nearby Englewood, NJ. He graduated from the Dwight Englewood School, Wesleyan University and the Boston University School of Law. After law school, Halsey worked for the Department of Justice for 34 years, first as a civil litigator and later as a criminal prosecutor and civil attorney in the U.S. Attorney’s Office for the District of Columbia. In 1999, Halsey moved to Maine where he worked as a civil attorney and criminal prosecutor in the U.S Attorney’s Office until 2017, when he was nominated by the President and confirmed by the Senate to be Maine’s U.S. Attorney, the chief federal law enforcement officer for the District of Maine. Halsey retired from the Department of Justice in February 2021. Prior to becoming a U.S. Attorney, Halsey was active in local affairs, including the Portland Republican City Committee, the Friends of Portland Parks, the Friends of the Portland Public Library and the Maine Leadership Institute. He previously authored a column entitled “Short Relief” that appeared in The Forecaster regional newspaper. His views are his own.


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