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Opinion Why jailing Jussie Smollett is unjust

Jussie Smollett is led out of the courtroom after being sentenced to jail time in Chicago on March 10. (Brian Cassella/Pool via REUTERS)

I don’t believe Jussie Smollett but I recognize when a Black man gets railroaded through a justice system that is out to get him. A rich entitled actor is hardly the most sympathetic face of reform. Still, Smollett’s case demonstrates that when powerful elites decide they want a Black man locked up, nothing and nobody — not even the elected prosecutor — will stop them.

Smollett’s the Black, gay actor who falsely claimed he had been the victim of a hate crime — attacked, he said, by two masked men who used racist and homophobic slurs and tied a rope around his neck.

Smollett’s story quickly fell apart, even as he continued to maintain his victimhood. He was charged with disorderly conduct. The charges were dropped in exchange for community service and surrender his $10,000 bond — an appropriate result for a first-time offender in a nonviolent crime.

But that wasn’t enough for many White people — and some Black people as well — who wanted a pound of Smollett’s flesh. Not for then-President Donald Trump, who tweeted the case was “an embarrassment to our nation.” Not for then-Mayor Rahm Emanuel, who called the resolution a “whitewash.” New York Post columnist Kyle Smith wrote, presciently and unsympathetically, “Smollett has not been nailed, and Chicago wants him nailed. He will get nailed.”

And nailed he was. The case against Smollett was revived, he was convicted of five counts of disorderly conduct, and last week sentenced to 150 days in jail. But incarcerating Smollett for falsely reporting a hate crime has nothing to do with protecting actual victims of racist and homophobic violence. Rather, it’s legal vigilantism that sends a stern warning about the limits of criminal justice reform: If those in power want a Black man locked up, they will find a way to do it.

Here’s the bizarre procedure they used to reprosecute Smollett: A retired Chicago judge who had nothing to do with the case filed a petition with the city’s criminal court, claiming that she had been so personally damaged by the derogatory media commentary that her “ability to live peacefully has been diminished.”

In response, Chicago’s chief criminal court judge appointed a special counsel to examine whether Smollett should be recharged, and to investigate how Cook County State’s Attorney Kim Foxx’s office had handled the case. Setting aside any presumption of innocence, the judge’s order described Smollett as a “charlatan who fomented a hoax the equal of any twisted television intrigue.”

Famed attorney Dan K. Webb, who served as special counsel in the Iran-contra scandal, was installed to oversee Foxx’s handling of the case. Trump had reportedly asked Webb to defend him in the Mueller investigation but Webb declined. He found time, however, to charge Smollett with several felonies. He also released a report saying Foxx’s office had not broken any laws but abused its discretion when Foxx remained involved with the case after saying she recused herself.

So a White male lawyer in private practice was handed more control over a criminal case than the Black female prosecutor elected to make those kinds of decisions. But Webb’s decision to throw the book at Smollett didn’t just undermine the legitimacy of the system. Public safety took a hit too.

Sending a Black gay man to jail for lying about being attacked will not encourage hate crime victims to come forward. Instead, it sends the message that they, rather than their assailants, are subject to being incarcerated if authorities don’t believe their stories. The most victim-sympathetic response would have been for the police to express disappointment in Smollett’s false report, but to let the community know that other allegations would receive the same intense response that Smollett’s had.

Except that no one would actually believe that, particularly not those minorities who seldom receive equal protection of law. Smollett’s initial claims got special treatment because of his celebrity status. It’s why then-Chicago police Superintendent Eddie Johnson flew to New York to be interviewed on national television, and devoted about two dozen officers and $130,000 to investigating Smollett’s allegations. In a city where most homicides go unsolved, Foxx’s decision to focus her prosecutorial resources on the real bad guys seems eminently reasonable.

Progressive prosecutors such as Foxx are an important component of criminal justice reform. But Black female elected district attorneys face the most pushback. Florida Gov. Rick Scott took away death penalty cases from the state’s first elected African American prosecutor, after she criticized capital punishment. A rogue Massachusetts judge tried to force then-Suffolk County District Attorney Rachael Rollins to prosecute a LGBTQ rights activist, before the state’s high court affirmed her independence.

Chicago’s Fraternal Order of Police, which had launched repeated racist and sexist attacks against Foxx, made the Smollett case the major issue in her reelection. Foxx won, indicating that the people of Chicago have confidence in her criminal justice priorities — even if certain elites do not.

As for Smollett, he is just another Black man serving time — in a system more perverted than his crime.