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Strange Justice for Jussie

The “alternative prosecution” lie.

In Illinois, a defendant can avoid jail or prison time by one of several ways.

A misdemeanant may be sentenced to court supervision, conditional discharge, or probation.

A felon may be sentenced to conditional discharge or probation.

Any defendant, if they meet certain criteria, may be placed in a diversion program such as drug court, domestic violence court, veteran’s court, or mental health court.

Court supervision is limited to misdemeanor offenses.  Upon a guilty plea, a defendant must meet the terms of supervision, usually for six months.  Upon completion of supervision, the charges are dismissed.  Court supervision can come with terms such as avoiding alcohol consumption, keeping a clean driving record, community service, or conditions like “no bad places, no bad people.” A violation of the terms of court supervision will result in the state filing a petition to revoke where the court terminates the sentence, imposes a fine, and places the conviction on the record.

Conditional discharge is more severe than court supervision.  This is generally for serious misdemeanors and some low level felonies.  Again, participation requires a guilty plea. It does not offer the same opportunity to have the record wiped clean. It comes with the same conditions and threat of revocation.  Though this revocation may lead to jail time. The term is generally longer.

Probation is the standard method of handling many felony cases.  The state does not like incarcerating people it doesn’t have to.  Probation is unique in that it is not always a voluntary option like conditional discharge and court supervision. One can end up on probation despite pleading not guilty.  Court supervision and conditional discharge result from an admission of guilt.  Probation comes with more restrictions and constant monitoring.  That is contrasted with CD and CS where the court itself, with the assistant of the state’s attorney’s office and its investigators, is the one monitoring completion of terms.

Diversion programs exist to give first time offenders with specific life circumstances a second chance without a criminal record being attached to them for the rest of their lives.

As we look at Jussie Smollett and this interview with Cook County State’s Attorney, we see that none of these options fit with this circumstance (scroll down to the video portion of the tweet).

We are told Smollett chose this alternative prosecution.  We are told that his community service and forfeited bond were sufficient to grant him this alternative.

The Cook County State’s Attorney’s Office says this: “Community service is a sanction that the court can impose as a condition of probation, conditional discharge, or supervision.”

Knowing that this “alternative” is attached to a finding of guilt, usually by admission, the State’s Attorney’s office sent an internal memo asking for proof of similar cases where charges were dismissed.  According to CBS in Chicago the email said, “We are looking for examples of cases, felony preferable, where we, in excersing [sic] our discretion, have entered into verbal agreements with defense attorneys to dismiss charges against an offender if certain conditions were met, such as the payment of restitution, completion of community service, completion of class, etc., but the defendant was not placed in a formal diversion program,”

Given what we know regarding Court Supervision, Conditional Discharge, and Probation, it is highly unlikely that the state’s attorney’s office will find any matching examples.  There is no reason, absent celebrity politics, for a case to be handled this way.  The “terms” of Jussie’s “alternative prosecution” are laughable.  Court supervision comes with more terms! Jussie was charged with sixteen felony counts.  Court supervision is for traffic offenses and misdemeanors. 

A typical case of court supervision goes like this:

  • 1: Person gets a ticket for 15mph over the limit.
  • 2: Person admits guilt on ticket, agrees to terms of CS for six months.
  • 3: Person completes defensive driving school.
  • 4: Person completes the six months with no new traffic offenses.
  • 5: Ticket is dismissed after six months.

Jussie committed sixteen felonies and had his record wiped clean in a day.  They didn’t wait six months to see if he’d rack up a new offense.  They didn’t monitor his compliance with terms for six months. And that’s if they went with an alternative prosecution that a felon is not eligible for!

It is quite interesting that State’s Attorney Kim Foxx is calling this an alternative prosecution since Smollett’s attorneys explicitly rejected this notion that Smollett agreed to have the disposition of the case deferred under the terms of some deal with prosecutors.  We know Smollett’s attorneys are correct because Smollett pleaded not guilty.  A deal would require an admission of guilt.  A report on Cook County’s alternative prosecution shows that Kim Foxx is full of it (skip to page 27 in the report to read about the program model).

That leaves only one option: The Cook County State’s Attorney’s Office deliberately circumvented justice in pursuit of some political end.

The special treatment of this case is appalling. The case was handed over to the first assistant state’s attorney.  In a county as large as Cook, it is shocking that the first assistant has ANY role in handling cases. 

This is how the case should have been handled:

Odds are in Cook County there is a specific court call dedicated to low-level felonies like this, similar to misdemeanor court.  Jussie’s case file would be wheeled into court on a cart of 200-300 cases where an overwhelmed, busy, and apathetic prosecutor thumbs through each case as they come for status check or termination. Toward the end of the court call, the prosecutor would finally get to the “S’s.” Smollett’s case number would be read aloud. Next up, CF-12345, Jussie Smollett. If Jussie pleaded guilty, the ASA would check compliance with terms and the date of termination. The ASA would see completion of some community service. The ASA would pull out his phone, go to the Secretary of State’s corporation database to check the status of the non-profit.  This might involve getting Cook County investigators to verify community service information.  Then the case would be put back on the cart until the next update or termination.  Only upon termination would a final judgment be entered.

But since Smollett pleaded not guilty, the process is much different.  It would turn into a dueling battle of a bunch of motions quibbling over evidence, testimony, and setting a court date.  Yet according to ABC, there was no motion to dismiss.

Kim Foxx and the Cook County State’s Attorney’s Office have been extremely disingenuous throughout this entire process.  The lack of transparency, the apparent corruption, and the political bias are all sufficient to warrant an FBI investigation into the case itself, but also the conduct of officials.  When the Chicago Police Department and the Mayor of Chicago are angered by the outcome of this case, you know that Crook County has crossed a line.

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