The Strange, Unsatisfying End to the Jussie Smollett Case

A bigot and a hoaxer cause the same harm to everyone save the primary victim.

Earlier this year, the actor Jussie Smollett told Chicago police that he was assaulted by two masked men who wrapped a rope around his neck and yelled, “This is MAGA country!” The news made national headlines and prompted an outpouring of support. Weeks later, Smollett was charged with disorderly conduct for allegedly staging the attack and filing a false police report in the matter. He faced 16 felony counts.

Now those charges have been dropped.

The actor forfeited a $10,000 bond and completed 16 hours of community service, but did not admit to lying to police or misleading the public about the matter. President Donald Trump, predictably, tweeted on the matter: “It is an embarrassment to our Nation!” And Chicago Mayor Rahm Emanuel called the failure to prosecute Smollett “an abomination.”

Was Emanuel right?

A fellow veteran of Barack Obama’s administration, David Axelrod, tentatively agreed on Twitter. “Unless some better explanation surfaces,” he declared, “here’s the lesson of this weird turn in the Smollett case: You can contrive a hate crime, make it a national news, get caught and––if you are a well-connected celebrity––get off for $10K and have your record expunged and files sealed.”

In response, the criminal-defense attorney Scott Greenfield pointed out that lots of reasons other than celebrity could explain the outcome. For example, prosecutors might have concluded that Smollett was a first-time offender with strong community ties and a low likelihood of recidivism, that he physically harmed no one, and that he has already suffered collateral consequences.

As a proponent of efforts to decrease incarceration rates, I would oppose jail time for this nonviolent crime, even given a conviction. Better to impose a fine and community service, alongside the embarrassment of getting caught and the reputational hit, than to pay to imprison someone who poses no public danger.

Still, so long as hate-crime laws are on the books, there is a strong case for treating hate-crime hoaxes as among the most serious nonviolent crimes. The standard case for hate-crime laws was well-articulated years ago by Michael Lieberman, the Washington counsel for the Anti-Defamation League:

Hate crimes … may effectively intimidate other members of the victim’s community, leaving them feeling terrorized, isolated, vulnerable, and unprotected by the law. By making the victim’s community fearful, angry, and suspicious of other groups—and of the power structure that is supposed to protect them—these incidents can damage the fabric of our society and fragment communities.

Anyone who supports the existence of hate-crime laws based on that logic should recognize that these ill effects manifest regardless of whether a publicized hate crime occurred or was the creation of a fabulist. A bigot and a hoaxer cause the same harm to everyone save the primary victim.

The Smollett case certainly prompted a lot of social-media posts by Americans professing fear and distress at the notion of a bigoted assault on the actor. If prosecutors possessed solid evidence that Smollett did sow terror, anger, and fear among black people and gay men, it seems perverse to conclude the matter without an admission of guilt and a public acknowledgment of the damage done. Publicizing those harms might deter others from committing the same crime.

Conversely, if prosecutors lack proof beyond a reasonable doubt that Smollett perpetrated those harms, they ought to say as much out of fairness to the actor.

The criminal-justice system is full of cases in which no satisfying answer is ever available to the public, reflecting imperfect processes in a messy, often unsatisfying world. That is the best that can be said of this strange conclusion to a strange case.