Jussie Smollett and the Impulse to Punish
On April 1st, several hundred people gathered outside the Cook County Administration Building, in downtown Chicago, for a protest organized by the local Fraternal Order of Police. The protesters, mostly male and almost all of them white, held signs calling for the resignation of the Cook County state’s attorney, Kim Foxx. More than a few wore MAGA hats.
Foxx, an African-American who won an upset victory in 2016, after promising to reform Chicago’s criminal-justice system, was already at odds with the city’s police. But tensions escalated last month, when, after a brief emergency hearing, Foxx’s office dropped all criminal charges against the actor Jussie Smollett. In January, Smollett claimed to have been assaulted by a pair of racist and homophobic Trump supporters. But, within weeks, Chicago police publicly accused Smollett of “concocting” the story, as evidence emerged that Smollett had staged the attack. Prosecutors charged him with sixteen felony counts of disorderly conduct and filing a false police report. Smollett pleaded not guilty, and prosecutors ultimately decided to drop the charges, noting that Smollett was forfeiting his bond and doing community service. “He has not been exonerated; he has not been found innocent,” Foxx wrote last month, in an op-ed in the Chicago Tribune. The prosecutor’s office said, in a statement, that it considered it a “just disposition and appropriate resolution to this case.”
Many have disagreed, attributing the agreement to Smollett’s insider connections and celebrity status. Before it appeared that Smollett had planned the attack, Foxx had communicated with his family; afterward, she took herself off the case, though it was still handled by other prosecutors in her office. For days, Foxx has been a fixture on cable news, as pundits and politicians across the political spectrum have criticized how she managed the case. On Fox News, Tucker Carlson called it “the opposite of justice,” saying, “The charges were dropped because someone in power called someone else in power and said, ‘Let him go.’ ” President Trump weighed in on Twitter, describing it as “an embarrassment to our Nation” and promising an F.B.I. investigation. Mayor Rahm Emanuel called the dropped charges “a whitewash of justice” and demanded that Smollett pay the city a hundred and thirty thousand dollars for the costs of the investigation. “Where is the accountability in the system?” Emanuel asked.
And then there was the Chicago police. “Do I think justice was served? No,” the Chicago police chief, Eddie Johnson, said after Smollett’s charges were dropped. On Thursday, the Chicago chapter of the Fraternal Order of Police, along with thirty suburban police chiefs, announced a vote of no confidence in Foxx. (Johnson was not among them.) “We need to have a prosecutor who is going to charge people when they commit a crime,” the F.O.P. president for Chicago, Kevin Graham, said. At the April 1st protest outside Foxx’s office, F.O.P. protesters chanted, “Lock her up!”
During the past week, a former Cook County prosecutor and a former Illinois appellate-court judge have filed petitions to have a special prosecutor review Foxx’s handling of the case. Both petitions noted that Foxx chose not to recuse herself; in her op-ed, Foxx wrote that she would “welcome an outside, nonpolitical review of how we handled this matter.” But there is no evidence that Foxx’s early communications improperly influenced the office’s decision. As Matthew Saniie, the chief data officer for Foxx’s office, recently wrote, in Cook County, cases in which the defendant, like Smollett, pleads not guilty to a fourth-degree felony end in a deferred prosecution seventy-five per cent of the time. Foxx runs the second-largest prosecutor’s office in the country, responsible for prosecuting crimes in Chicago and a hundred and thirty-four municipalities. Her staff sees almost half a million cases every year. Prosecutorial discretion is one of the pillars of our justice system, and it is her job to discern what deserves her staff’s attention, as opposed to what has grabbed the most public attention. “I cannot run an office that is driven by anger and public sentiment,” Foxx said on Saturday.
The onslaught of criticism against Foxx exposes an uncomfortable truth about the depth of America’s attachment to mass incarceration. In theory, criminal-justice reform is more popular than ever. A majority of Americans support reducing punishment, especially for nonviolent offenders. Across the political spectrum, voters want law enforcement to focus more resources on the most serious crimes. But there’s no way to reconcile what we claim to believe and what commands our outrage. There are currently two million incarcerated people in this country. Another four and a half million are under some other form of correctional control. Yet, with the Smollett case, it is leniency that gets the attention. There’s a common belief that criminal-justice reform is one of the few bipartisan issues left in politics. But our thirst for punishment is equally politically salient.
Nowhere is this more apparent than in Chicago. In 2014, the Chicago police officer Jason Van Dyke shot Laquan McDonald, an African-American teen-ager, sixteen times. Dash-cam footage shows that McDonald was walking away from Van Dyke when the officer began shooting, and that he continued shooting for thirteen seconds after McDonald fell to the ground. The video is deeply distressing, and makes it impossible to characterize McDonald’s death as anything less than the execution of a child. But, for thirteen months, the former state’s attorney Anita Alvarez chose not to charge Van Dyke with murder. In the end, she only brought charges against him when the video was going to be made public, in November, 2015. (In January, Van Dyke, who was convicted of second-degree murder, received a sentence of nearly seven years in prison.)
For eight years, Alvarez had aligned herself with law enforcement, aggressively prosecuting even minor crimes. In 2010, Cook County Jail, the largest single-site jail in America, was so crowded that federal authorities stepped in, requiring that the county reduce the population. But, by 2013, the inmate count had only increased, and Alvarez continued to file unnecessary charges, including prosecuting people for misdemeanor marijuana possession three years after the state decriminalized it. For a prosecutor as harsh as Alvarez, there is a certain irony in the fact that her hesitance to prosecute Van Dyke helped Kim Foxx defeat her in the Democratic primary—ultimately, leniency ended her career.
“If there’s no charges and nobody goes to jail, then obviously the law doesn’t mean anything,” Graham said this week, in response to the dropped charges against Smollett. But, when it comes to who should be held accountable, the F.O.P. has always been selective. It never protested Anita Alvarez, whom it endorsed in 2012. Unlike previous candidates, Foxx did not seek the endorsement of the F.O.P., because she “did not believe that the prosecutor was accountable to the police union,” she said. “If I am more concerned about having others in law enforcement validate me than the people that I serve, I’m already going to fail.”
Since Foxx’s election, reform-oriented prosecutors have won elections in St. Louis, Orlando, Philadelphia, Durham, Houston, and Boston. These victories have been heartening—a sign that change is possible. Still, the outrage over Smollett’s case is a reminder that Americans’ punitive instincts run deep. If the allegations are correct, Smollett’s behavior is morally indefensible. Exploiting the terror of racist and homophobic violence for personal gain is a form of social plunder. If Smollett lied, it is deeply insulting, not only to the people of Chicago but to anyone who has been victimized because of his race or sexual orientation. But not all immoral behavior necessitates criminal punishment. To stem the tide of mass incarceration, we must get comfortable with less punishment, even for some of the people we find morally reprehensible.