Actor Jussie Smollett is led out of the courtroom after being sentenced to jail time on Thursday, March 10, 2022 at the Leighton Criminal Court Building. (Photo by Brian Cassella/Pool/Chicago Tribune.)
An Illinois appeals court has ordered that actor Jussie Smollett be released from jail pending an appeal.
Two justices signed the requisite Wednesday document; one dissented. The order was a response to a motion by Smollett’s attorneys to stay the actor’s sentence while the appellate justices considered a broader appeal on the merits and technicalities of the case.
The court agreed Smollett should remain free for the time being because he was “convicted on non-violent offenses” and because the appellate justices would “be unable to dispose” of the matter “before the defendant would have served his entire sentence of incarceration.”
“The defendant, Jussie Smollett, shall be released from the custody of the Cook County Sheriff upon the posting of a personal recognizance bond . . . in the amount of $150,000,” the document reads.
Though Smollett is now therefore eligible for release, he remains incarcerated as of the time of this report, according to Cook County, Ill. online jail records — assuming those are up to date.
Justices Joy Cunningham and Thomas E. Hoffman signed the order in agreement. Justice Maureen E. Connors disagreed via a signature in the dissent column of the one-page order; she said simply that she “would deny the defendant’s motion.”
All three justices were elected to their posts; they were not appointed. The website Ballotpedia and online news reports say all three are Democrats.
In a March 11 motion, Smollett attorney Nenye E. Uche urged the court to act immediately — or to issue “an otherwise expeditious decision” — due to the “extraordinary circumstances which involve the health and safety of Mr. Smollett being held in custody.” Uche’s motion cited “irreparable damage” from Smollett’s incarceration as one of the issues that deserved the appellate court’s immediate attention.
“Mr. Smollett has a meritorious appeal, and has exercised due diligence in the quest to have this matter heard on the merits of the case,” his attorney further asserted.
Jussie Smollett appears in a March 2022 mugshot released by the Cook County, Ill. Jail.
Smollett’s counsel has long argued that the office of State’s Attorney Kim Foxx agreed to a pretrial diversion for Smollett and that the terms of that deal — community service and the relinquishment of a $10,000 bail bond — were immediately fulfilled. Because of that, Smollett’s attorneys say his subsequent prosecution by a special prosecutor violated both his contract with the state (by way of Foxx’s office) and his constitutional rights against double jeopardy. The actor’s attorneys also say the special prosecutor was improperly appointed due to pressure from a now-retired judge.
The trial judge who sentenced Smollett to 150 days behind bars back on March 10 did not accept the validity of any of the arguments of Smollett’s attorneys. He also refused to stay the sentence that day.
Uche argued to the appeals court that the appeals process would take longer than the 150 days of incarceration — a point the appellate justices latched onto — but also as follows:
Smollett has become a target of vicious threats in the social media forums which no doubt reflects the hatred and wish for physical harm towards Smollett which he may experience during incarceration.Mr. Smollett anticipates he will most likely be assigned to segregated incarceration or protective custody, both euphemisms for solitary confinement; a situation which could have extraordinary damage on his mental health. As a result, any custodial setting poses a safety and health danger to the life of Mr. Smollett.
The appellate justices did not immediately address those concerns by ordering Smollett released.
Special prosecutor Dan Webb speaks during a sentencing hearing for actor Jussie Smollett on Thursday, March 10, 2022. (Photo via Brian Cassella/Pool/Chicago Tribune.)
The special prosecutor’s office filed separate paperwork to oppose the defendant’s motion:
There is no emergency that warrants the extraordinary relief of staying Mr. Smollett’s sentence pending appeal. Indeed, the Emergency Motion fails to offer a single justification for staying Mr. Smollett’s sentence that is particularized to the facts or circumstances of this case. Rather than attempt to meet his burden of showing good cause for his immediate release, Mr. Smollett makes only cursory, woefully undeveloped arguments. Each fails to demonstrate good cause to stay his jail sentence. The Emergency Motion should be denied.
“Mr. Smollett asserts that he is entitled a stay because he will most likely serve his short, 150-day jail sentence before his appeal on the merits is decided,” the special prosecutor continued. “But, according to this logic, every defendant sentenced to a term of imprisonment less than a few years would automatically receive a stay pending appeal. That simply is not, and cannot be, the rule.”
The appellate judges were apparently unconvinced of that logic.
Smollett was convicted by a jury after the special prosecutor relaunched the case against him. Jurors agreed that he lied to the police repeatedly about a racist and homophobic attack he paid two brothers with whom he worked on a television series to perpetrate against himself.
Read the Smollett motion, the special prosecutor’s response, the terse court order below, in that order: