Jussie Smollett case shows how much faith Americans have in government officials

If a prosecutor had disliked Jussie Smollett for any reason, he could have been tried for 16 felony counts and been sentenced to as much as 64 years in prison (CBS).

The prosecutor, however, decided that $10,000 and two days of community service would be appropriate (i.e., 0 days in prison rather than more than 23,000). See this AP story in the New York Times:

Defense attorneys said Smollett’s record was “wiped clean” of the 16 felony counts related to making a false report. The actor, who also agreed to do community service, insisted that he had “been truthful and consistent on every single level since day one.”

“I would not be my mother’s son if I was capable of one drop of what I was being accused of,” he told reporters after a court hearing. He thanked the state of Illinois “for attempting to do what’s right.”

I think that this illustrates how much faith Americans have in their government, being willing to vest decision-making over whether this guy would spend the rest of his life in prison or walk free after paying over a few hours of wages (he gets paid more than $100,000 per episode of a TV show).

I don’t think that Europeans live with this kind of unpredictability or subject to the personal whims of government officials. Smollett’s alleged actions would be matched up as closely as possible with something in the big code book(s) and the appropriate punishment looked up.

[The situation in family law is analogous. European countries tend to have straightforward rules, e.g., “the mother will always win custody of minor children” (Denmark) and limits on profitability for both plaintiffs and attorneys (Germany). Contrast to a classical U.S. state, such as Massachusetts, where a child support plaintiff who had sex with a dermatologist could end up with (1) larger after-tax profits than the earnings of a primary care doctor plus 50%-100% custody of the resulting child, (2) profits capped at $1 million (23 years times $40,000) and half-time or primary custody, (3) 0-49% custody of the child and zero revenue. Much of this would be entirely unpredictable until there was a judge assigned to the case (see our statistical study of Middlesex County Probate and Family Court for how dramatic the judge-to-judge variation can be). From the Washington State chapter:

What if a case doesn’t settle? “My main concern with the courts is that lack of consistency from judge to judge,” says DeVallance. “I have two cases with similar facts. In Case 1 Dad has a shared parenting schedule. In Case 2 Dad has supervised visitation [his children can see him only in a facility run by social workers]. The only difference is the judge that was drawn in each case. I could take the exact same facts and make the exact same argument in front of five judges and get five different rulings. This is such a challenge for family law litigators because clients come to us asking for advice.”

The Washington State lawyer’s comments were consistent with what we heard from attorneys around the U.S., except in the handful of states with 50/50 shared parenting presumptions. It costs hundred of thousands of dollars in legal fees just to find out where a judge’s personal biases and prejudices will fall.]

Readers: Why would we give single individuals so much discretion? Is it because we think that Americans are uniquely talented and therefore individual Americans, in this case prosecutors, must be exceptionally capable? The same reasoning behind the often-expressed belief that Americans will play an important role in solving global challenges, such as reducing atmospheric CO2? (Our best engineers can’t make a safe airliner, but the Germans and Chinese will look to us for guidance when they’re building solar cells, windmills, and CO2 vacuums?)


Posted in Law

12 thoughts on “Jussie Smollett case shows how much faith Americans have in government officials

  1. Charging Smollett with 16 felonies was purely a PR stunt by the prosecutor. If the case had actually gone to trial, it’s very likely that the eventual outcome still would’ve been a fine and a bit of community service. No matter the legal outcome, Jussie Smollett will forever be “the guy who staged a fake hate crime to boost his career” to most people so it’s not like this is really much of a victory for him.

  2. The reason why Europeans are less subject to capricious authorities is because apart from the UK and Ireland, their legal systems are based on civil (Roman) law where everything is codified and judges don’t have arbitrary power to interpret laws as they see fit. Common Law is often presented as “flexible”, which is of course just an euphemism for “capricious”.

    There is also the influence of federalism, which leads to widely different outcomes depending on the state, but the US is such a large country a centralized European-style system would just explode into multiple state independence movements making the Civil War look like a walk in the park.

  3. Want to know how cynical I am? You can’t, because you can’t measure how cynical I am about things like this, and neither can I. I can’t answer your questions because they don’t make sense in this case. There’s nothing that makes sense here, except the internal logic of Chicagoland. And we will never know the details.

    It has very little to do American trust in government, because this was a Chicagoland anomaly, and they can be very strange indeed when they happen every few years or so. It was like a macroscopic quantum tunneling event involving an entire person! Smolett was given the chance to literally quantum tunnel his way out of jail and all the charges against him, and Chicago and the Cook County Prosecutor’s Office and Fox Television and probably many other people allowed his critical mass to do it so they could avoid a prompt criticality event. Because I think it served a lot of interests to do so, and because that’s what was going to happen: a prompt criticality event.

    I’m just glad there are some people who stuck by their bets that the charges would all vanish before anyone went to trial, because those people know how Chicago really works when the chips are down.

    The Tribune is trying to muster as much outrage as it possibly can without sounding ridiculous, but everyone who isn’t blind, and anyone who has ever lived in Chicago, knows the fix was in.


    “State’s Attorney Foxx, you recused yourself, but your office dropped the case. You owe Chicagoans answers. Starting with: When did you first learn of this indefensible deal? Why was it cut in secret? Why doesn’t Jussie Smollett have to own what he was accused of doing? Because like it or not, Ms. Foxx, you own this.”

    Uh huh. Wow, that was magnificent! Bravo! Amazing! Now here’s the news: State’s Attorney Foxx is probably going to be just fine. She may have some rough seas ahead but she’ll get a life preserver. So will everyone in her office. The newspapers can yell until they are blue in the face, and Rahm Emanuel is a very convincing actor, every once in a while he really knows how to uncork an Oscar-winning performance, and that’s exactly what he did. He doesn’t get the big bucks for nothing. Let’s put it this way: Fox Broadcasting didn’t want to see Smolett sentenced. They say they were gratified the charges were dropped. The City of Chicago and Cook County didn’t want to deal with the trial and the sentencing and the massive crowds of protestors and the broken windows and the burning stores and the marshal law and the National Guard and the Nation of Islam and the gunfire and mayhem as Smolett was sentenced to prison. And neither did anybody else. So there’s my totally speculative answer.


    “Fox Television, which produces “Empire,” issued a one-sentence statement late Tuesday saying only that the company was “gratified” that the charges had been dropped.”

    I have every reason to believe that the secret deal was seen as the perfect way to get this all taken care of before there was any serious public unrest. I think there would have been public unrest. There would have been riots, and Chicago doesn’t want riots going into what is sure to be a long, hot summer. My guess, and it can never be proven, is that the Cook County Prosecutors and the other “authorities” in Chicago put their heads together and figured out how to avoid their big pile going prompt critical. They’re going to clean up the relatively small mess, there will be some small repercussions, but that’s all, folks.

    There ARE two systems of justice (actually more than that), there ARE things that happen that don’t make sense and are indefensible, and there ARE unconscionable deals that are made which from an outsider’s perspective make us the laughingstock of the world. But that is how it sometimes is.

    The only thing I can think of that’s even in the same order of magnitude was the morning everyone woke up to the news that Mayor Daley had bulldozed Meigs Field in the middle of the night. He just did it, and that was that. What was anybody gonna do about it? Yell a little? Wave arms? Shake their heads? That’s about it.


  4. @Sean, I see your point about the probable outcome – but do you really think it was the right decision? The DA clearly subverted due process! I don’t care about the politics that are wrapped up in it (MAGA). How can it be that filing a false police report goes unpunished? Sadly, our justice system is broken, from the bottom to the top, and the citizens on both sides just shrug when it goes in their political favor. Has anyone any principles left?

    I guess we really are just “a government of men and not of laws”

    • I very seriously doubt the outcome of a 16 felony indictment would have been a fine and a few hours of community service. If the trial went foward with the evidence everyone says the police had meticulously gathered, absent a huge prosecutorial blunder it’s likely he would have faced prison time. At the very, very least I think he would have been a convicted felon.

      In addition to the things I wrote about the protests and civil unrest – which I think is true – there’s something else: the charges were serious and the trial would have been a huge distraction from what the next few months are supposed to be all about: the ongoing, relentless pursuit of the President. Otherwise that would have been a competition for eyeballs and mindshare with Smolett’s troubles. A decision was made, therefore, that the only authority that could prevent Smolett’s trial from happening did prevent it from happening, before it even began. That’s what I think, anyway. It’s very cynical, I know. I feel terrible being this cynical.

      The charges cannot be brought again. It’s over. They were dropped, Smolett walks away a free man, no felonies, and in doing so it was reaffirmed that there will be uninterrupted focus on the Main Event this spring, summer and fall: the ongoing war against the President.

    • @Alex, btw – your angle on it was really thought provoking. I did not consider the motive that officials might have had “to keep the peace” and avoid riots. It is an interesting theory, because according to the prosecutor, Smollet is “not considered to be a public threat”, but then the dropping of the charges to sweep this under the rug to avoid a riot actually argues that this provocateur really is a public threat!!

      Just another day in Chicagoland. What new lows we have reached in this country. And not too long ago we had to endure the embarrassment of the Cavanaugh circus.

    • @GermanL I really don’t like thinking that way. First of all it’s very speculative and I don’t like doing that. It’s terrible to imagine that people (and this isn’t about race, it’s about anger) might become violent over something like this. The reality is that emotions are running very high and there are a lot of instigators in Chicago who are experts at manipulating people unscrupulously to stoke anger and channel the results. It can be a dangerous place.

      This was an extraordinary, far-out event. Who knows, maybe Rahm Emanuel really was taken by surprise. One thing’s certain: it happened quickly. The decision to drop the charges was made, and by the time anyone knew what was happening, it was a fait accompli. There has to be a really serious reason why.

      Chicago has a pretty big surveillance infrastructure. In fact, some of the evidence the Chicago Police supposedly had against Smolett was collected by that surveillance infrastructure. And who knows what kind of stuff they were seeing and hearing when the Mueller Report news came down this past weekend?

      “See then that ye walk circumspectly, not as fools, but as wise, Redeeming the time, because the days are evil.” – Ephesians 5:15-16, KJV

  5. Sorry, I can’t control myself!

    This is what you expect when the Foxx is guarding the henhouse!


    The moral of the story is that race matters more than facts and right and wrong, and as Mencius Moldbug (Curtis Yarvin) says, if you want to know who is really in charge, see who you insult at your peril.



  6. The more ad hoc the rules the more litigation you have (because the parties can’t predict the result and are therefor willing to leave it to a third party) and litigation gives jobs to judges, court officers, lawyers, and the mental health “professionals” with profound insights into what is in the best interests of the child. So that is why a rules based system is unlikely to to gain much traction in the US of A in the foreseeable future. But i have a more important question, Phil — when your senator becomes president and starts handing out reparations will Jussie Somllens get a half share or none. He is half black and half Jewish. Will the Jewish part cancel out the black part so he gets zero (jews are disfavored minorities and have a negative value in any racial preference system) or will he get a half share? I can see arguments either way but maybe there is some mathematical principal that governs this that you might know?.

  7. What about the Osundairo brothers, who already confessed? Will charges be dropped, too?

    If not, I guess Americans need to have even more faith in government officials.

    I have to admit that the US legal system has much more potential for entertainment than its boring German counterpart. There should be special Oscars and Grammys.

  8. This is all so very wrong in my opinion.

    Smollett did not admit to anything but yet the prosecutor decided that $10,000 of fine and two days of community service would be an appropriate “punishment”. If this was not a punishment, what was it than?

    How about the 2 men who orchestrated the attack who admired that they were paid by Smollett to do what they did. Why the prosecutor drop all charges against them with no fine?

    Where are all the virtues American not screaming about this and asking for the full report be made public?

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