For almost three years, it has been clear that any prosecutor who wanted to convict Jussie Smollett of a crime could probably do it. “We believe he did what he was charged with doing,” said Joe Magats of the Cook County, Illinois, state’s attorney’s office in March 2019. The decision to drop felony charges against the actor, Magats emphasized, was “not an exoneration.”
But the charges were eventually reinstated. And now that a Chicago jury has found Smollett guilty on five counts of disorderly conduct for lying to the police, the matter of his guilt has eclipsed the bigger question of whether he should have been prosecuted at all. Which is a shame, because that question, which consumed Chicago prosecutors in the early months after police announced that Smollett had staged a hoax hate crime against himself, is the real reason we’re here.
The concept of saying “no” to a slam-dunk conviction was unthinkable as recently as 2012. Quite the opposite: Law-enforcement officials in Cook County often trampled ethical and legal boundaries to secure them. A 60 Minutes segment from that year documented a pattern of coercive interrogation methods used by the Chicago police. Two instances from the 1990s had landed several teenage boys in prison for rapes and murders they didn’t commit.
Anita Alvarez, the Cook County state’s attorney at the time the segment aired, stood by the police’s tactics. There were “all kinds of possibilities out there, and what I’m saying is that I don’t know what happened,” she told 60 Minutes. When asked about new DNA testing that implicated other men in the crimes, Alvarez said someone else might have ejaculated inside the corpse after the teens had dumped it.
It was an outlandish theory, but it didn’t shock anyone who knew her. Alvarez had a reputation as a ruthless prosecutor and an unscrupulous advocate for the police. In 1999, she approved the four-year solitary confinement of a 16-year-old boy whose eventual murder trial took 45 minutes and ended with his acquittal. Between her election as SA in 2008 and her ouster in 2016, she demanded a similar attitude from the more than 700 attorneys who worked for her — a “win-at-all-costs” mentality.
Her unwillingness to apply the law to cops did her in. She charged multiple civilians with felony wiretapping for recording interactions with the Chicago police. She prosecuted Dante Servin, the off-duty officer who fired into a crowd and killed Rekia Boyd in 2013, on charges so inconsistent with what he had done that observers were sure she had engineered his acquittal. By the time Officer Jason Van Dyke shot and killed Laquan MacDonald in 2014 and embroiled the mayor’s and SA’s offices in a cover-up scandal, Alvarez’s antics had turned her into a rarity: a prosecutor who was electorally vulnerable.
Kim Foxx, who ran against Alvarez in the 2016 Democratic primary, offered an alternative that was as simple as it was unfamiliar. She would aggressively prosecute police abuses, she promised, while civilians in Cook County would be charged according to new standards of public safety. Low-level and nonviolent offenses would be deprioritized in favor of violent felonies; some crimes wouldn’t be prosecuted at all. Foxx told Chicago Magazine that her office would give back the “discretion” that Alvarez had taken away from her prosecutors, letting them choose to be lenient instead.
Foxx beat Alvarez in a landslide in the primary and was elected that fall. Chicago police, who had gotten used to impunity, were predictably upset. “If you have laws on the books, and if you’re not arresting people and you don’t prosecute them, nobody goes to jail, people have the idea that the laws don’t mean anything,” Kenneth W. Graham, president of the Chicago branch of the Fraternal Order of Police (FOP), told the New Yorker.
People were still going to jail, of course, and the anarchy that Foxx’s critics warned about failed to materialize. But two years of the SA clashing with cops made Smollett’s case a natural proxy for their fight with her.
By January 2019, Foxx had made good on many of her campaign promises and overseen dips in crime. An analysis by the Marshall Project that year found that her office had turned away 5,000 cases that her predecessor would’ve prosecuted, mostly concerning low-level shoplifting and drug offenses. Under her stated rubric, these people weren’t serious threats to public safety. When Smollett’s story about getting assaulted by two masked Donald Trump supporters started to fall apart that month, her prosecutors used the same logic.
It was all the opportunity her opponents needed. Chicago cops staged street protests against Foxx, and the FOP called on her to resign. Trump himself accused Smollett of racism on Twitter, and right-wing pundits piled on, calling the choice not to prosecute him a “mockery” of justice and an example of “Black privilege.”
The backlash was transpartisan. Foxx was also condemned by the Chicago police superintendent, several bar associations, and then-Mayor Rahm Emanuel, who had worked alongside Alvarez to withhold details about the MacDonald killing in 2014. The fallout from that incident catalyzed his decision not to run for reelection.
Foxx recused herself from the case, citing “familiarity” with potential witnesses (she had communicated with Smollett’s inner circle when he was considered a victim). But after the outcry, she asked for an independent investigation into her office’s handling of it. A judge appointed a special prosecutor, who brought back the charges against Smollett after putting them to a grand jury. He also claimed Foxx had “abused” her discretion by dropping the charges and may have misled the public about why she had done so, which she denies.
The notion that Foxx’s leniency was an abuse of power may have reached a fever pitch with Smollett, but it extends far beyond it. It was also the centerpiece of the unsuccessful campaigns in 2020 to oust her. When the Chicago Tribune hosted an hour-long debate with Foxx and her challengers in the Democratic primary that January, a full 30 minutes was dedicated to her handling of the Smollett case. (She won reelection anyway.) In October, Republicans in the Illinois general assembly introduced a bill backed by several Chicago-area sheriffs that would let them override charging decisions by Foxx that they thought were too lax.
The paradoxical rationale — pushed by local cops, conservative pundits, and the special prosecutor in the Smollett trial alike — is that Foxx is wasting police resources by not charging everyone the cops bring to her. The Chicago police, meanwhile, solve roughly half of the city’s homicides in a good year and cost it $524 million in legal expenses stemming from their abuses in the decade before Smollett made his false accusation.
And they’re winning. Their framing of the Smollett case has turned what used to be a local police vendetta into a national cause. The right of prosecutors to be lenient in a region with one of the most barbaric criminal-justice track records in the United States is now being openly disputed by state-level lawmakers. This was always the point, of course. Jussie Smollett was just them getting lucky.