Introduction
In a remarkable sentencing hearing that lasted over 4 hours, Judge James Linn sentenced Jussie Smollett to the maximum amount of felony probation (30 months), the maximum allowable fine ($25,000), the maximum restitution requested for the City of Chicago ($120,000), and just under the maximum number of days allowed in county jail (150 days out of 180). (Under state law, Smollett should only have to serve half of the jail time.)
In short, Judge Linn hammered him.
Since the sentencing, many people are wondering what is felony probation?
Felony probation is a structured and intensely supervised probation sentence requiring check-ins with a probation officer and long-term rehabilitation goals. Defendants must pay fines, court costs, and restitution as part of felony probation and may also have to serve community service hours.
In light of how the sentencing hearing went, it is hard not to wonder whether Jussie Smollett undertook any personal efforts to mitigate his situation, and whether those efforts could have helped him get a better outcome?
Let’s discuss.
Discussion
A jury convicted Jussie Smollett on 5 counts of disorderly conduct for lying to the police about his hate crime hoax. On the witness stand, Smollett denied the allegations and, to this day, maintains his innocence.
Criminal sentencing requires a balancing of mitigating and aggravating factors in each case. A sentencing judge looks at the totality of the circumstances, focusing on the crime and also on the individual person before the court.
Sentencing judges can share as much or as little as they wish about the reasons for the sentence they hand down. In Smollett’s case, Judge Linn went above and beyond to let the public know his exact thoughts about the crime and the defendant, including what he saw as mitigating factors and aggravating factors.
Mitigating Factors
Judge Linn noted Smollett’s strong family and community support and the values with which they raised him. Judge Linn also noted Smollett’s own dedication to social justice issues. Smollett is an advocate and activist who has donated time and money to social justice causes throughout his life.
Aggravating Factors
After noting that Smollett’s Class 4 felony conviction carries a presumptive sentence of probation, Judge Linn sharply added:
“…BUT, we have some seriously aggravating factors as well,” including:
- The defendant carefully staged, planned, and premeditated the crime.
- The City of Chicago had to waste valuable police resources to pursue the case and the investigation.
- The damage the defendant’s actions caused to social justice issues, including the need to combat hate crimes in our country.
- The defendant callously disregarded his oath when he took the witness stand and lied repeatedly. Judge Linn said that Smollett lied to the police when he first claimed to have been attacked and has not stopped lying about what did or did not happen ever since. (Smollett continues to maintain his innocence.)
Indeed, to Judge Linn, the lying was the worst of all aggravating factors. That is not surprising because judges do not appreciate people blatantly lying in court. Judge Linn found that Smollett did nothing but lie under oath during his trial testimony, which lasted several hours.
And for perjuring himself and disrespecting the court, Judge Linn ripped Smollet to shreds, calling him arrogant, selfish, and narcissistic, craving for attention.
Smollett is lucky that Judge Linn did not refer him for a perjury prosecution, which can happen when defendants take the witness and lie. That is how upset Judge Linn was with Smollett.
Potential perjury charges and the fact that a sentencing judge can use a defendant’s statements on the witness stand when considering the sentence are among the reasons defense counsel typically advise clients against testifying. After all, the Constitution does not require criminal defendants to present any defense at a trial. Nonetheless, sometimes defendants insist on testifying, thinking they are their own best advocates.
In Smollett’s case, the strategy to testify failed epically. Neither the jury nor the Judge believed Smollett’s denials. In hindsight, As such, Smollett may have been better off not testifying and avoiding the aggravating factor.
Again, lying under oath is the worst insult to a court and a judge. It is never condoned and often prosecuted.
And, by all accounts, Smollett and his team had to realize that they had serious work to do to overcome Judge Linn’s likely perception of him as an arrogant liar who thinks he can get away with anything. As it turned out, that is precisely what the Judge believes. It is part of a criminal defendant’s work to address the Judge’s likely negative perceptions in advance of sentencing.
Premeditation is an Aggravating Sentencing Factor
The premeditated and deliberate nature of the offense deserves special mention, as it caused Judge Linn particular consternation.
Judge Linn specifically noted how most people do not wake up in the morning with intentions to commit a crime or defraud. He knows from experience that situations often happen, and people give in to temptation. The Judge used examples like road rage or someone finding a credit card in a department store and using it without fully thinking it through. Those examples are different from Smollett’s or others who proactively and deliberately decide to commit crimes after thinking about or deciding to cover up.
Sentencing judges care about crimes that require planning and deliberation or go on for long periods of time without interruption. Defendants would be wise to consider addressing such issues when preparing for sentencing.
The Sentencing Allocution
Defendants who consider themselves innocent or victimized have a tough decision to make about allocution. Defendants who testify and are convicted have it especially tough, as do those who are planning to appeal. What can they say if addressing the court on sentencing day in those circumstances?
Every case is different, but even acknowledging that the defendant is the reason everyone has gathered might be beneficial. Or, in some cases, making an apology of some kind that does not compromise their appellate rights. These situations are challenging, no doubt. The safest, most straightforward route is the one Smollett and his counsel took to have the defendant say nothing. In those cases, defendants must prepare for the judge’s possible disappointment when they do not speak.
We have discussed previously the importance of the sentencing allocution, where the defendant gets an unmatched opportunity to show respect for the criminal process, apologize to the court and victims, perhaps show remorse, request leniency, show contrition, and the like. Sentencing judges repeatedly tell us how much they appreciate hearing from the defendant directly whenever possible.
Learn more about sentencing leniency from our interview with Judge Stephen Bough here: How to Get Leniency at Sentencing.
In fact, some defendants are shy about public speaking and prefer to address the court with a personal written statement. In Smollett’s case, it does not appear he submitted a written sentencing statement either.
Smollett had nothing to say to the court, the City of Chicago, or the public. Instead, his lawyers and many others spoke in person and via letters on his behalf. Judge Linn patiently listened to both sides for hours.
Forty minutes after he began his sentencing statement, Judge Linn finally pronounced the sentence and remanded Smollett to Cook County Jail.
What Smollett Could Have Done For a Better Outcome
It’s hard to pinpoint what Smollett could have done to change his sentencing outcome. Judge Linn had powerful feelings about the defendant and the case, including why Smollett faked a hate crime and how arrogant and selfish he behaved throughout the process. Perhaps there was nothing Smollett could do to convince Judge Linn to give him probation, community service, or any other alternative to jail.
However, none of that means a defendant can sit back, say nothing, do nothing, and expect mitigation.
It is remarkable that several family members spoke to the press after the sentencing and complained about the Judge. His sister Jojo Smollett told the media that the Judge “shamed my brother. He spoke about his arrogance…He doesn’t know the struggles my brother is encountering. He doesn’t know anything that he’s dealing with.”
Who is at fault when a judge is unaware of critical factors influencing the sentencing outcome?
If critical struggles or other matters relevant to sentencing could have influenced Judge Linn, why were those not put before him?
We believe it is up to the defendant to let their judge know who they are and why they are worthy of leniency. Without personal self-advocacy from the defendant, the mitigation effort is not complete.
In Smollett’s case, his sister basically admitted that they did not tell the judge everything he should have considered. Moreover, Smollett and his team also failed to thoughtfully consider Judge Linn’s concerns, especially Smollett’s lying, which Judge Linn called “the caper of all capers…”
Had Smollet and his team followed the Straight-A Guide, a manual we use in our sentencing mitigation work with clients, they might have been better able to meet the moment.
The Straight-A Guide
The Straight-A Guide, created by Michael Santos, is an essential tool in our sentencing mitigation work with clients.
At the outset, the Straight-A Guide asks defendants to consider how different stakeholders in the criminal justice process, including their sentencing judge, might view them? What does the defendant think their sentencing judge thinks of them?
There may be no set of questions more important to work on than these for people working on sentencing mitigation.
Defendants must embrace the painful work of confronting what their judge knows about them, which comes from prosecutors, victims, and case witnesses. Otherwise, they will never understand the magnitude of the task before them.
Before sentencing, prosecutors, victims, and other witnesses will have highlighted the worst facts about the defendant for the judge. What Judge Linn referred to many times as Jussie Smollett’s “dark side.” His “arrogance, selfishness, and narcissism.”
Judges can only work with the information given to them. To gain any form of mitigation, the defendant must present a compelling counter-narrative in response to the negative narrative presented to the judge by others.
The Straight-A Guide helps defendants confront and do the work necessary to present a counter narrative to blunt the effects of the prosecution’s one-sided presentation.
We do not think Smollett did any work resembling the work the Straight-A Guide demands. To be fair, Smollett presented some mitigation factors, especially with the many compelling letters of support that people of stature submitted on his behalf. Reverends, activists, professors, elected officials, and others spoke up to let Judge Linn know they would be there to help Smollett. And Judge Linn stated his appreciation for getting that information.
But for Smollett, that could only go so far when he left so many other aggravating factors unaddressed.
Did Smollett stop to think at any point before sentencing this question, one of the first questions the Straight-A Guide asks defendants to consider as they prepare for sentencing:
With the information he has, what does the judge think about my character as a human being?
We do not think so.
The Judge let Smollett know his thoughts and feelings in painful detail. But Smollett lacked the self-awareness to acknowledge Judge Linn’s likely perceptions of him.
Did Smollett expect the shellacking he received from Judge Linn? Did he anticipate how angered Judge Linn might be if he perceives that Smollett continues to lie? A defendant cannot ignore those questions and expect kindness at sentencing.
That is why Judge Linn blasted Smollett and his team on national media. Smollett’s sentencing is getting much media attention due to his fame. But make no mistake, what happened to Smollett happens to non-famous defendants in courts around the country every day, especially when defendants fail to consider the perceptions of the other stakeholders in the system.
Defendants who fail to put themselves in the shoes of the sentencing judge, or the victims, or the prosecution and, like Smollett, remain focused only on themselves will pay the price at sentencing.
Straight-A Guide Chapter 1 Questions
Every defendant would be wise to consider and answer each of these questions to prepare for sentencing:
- How do the people that investigated my crime view me?
- What does the prosecutor think about me as a human being from the evidence he has seen?
- What thoughts do my victims have about me?
- How have my actions influenced the lives of others?
- In what ways have my actions influenced the community where I live?
- What steps can I take today to work towards reconciling with society and making things right?
- With the information he has, what does the judge think about my character as a human being?
- What do others know about the influences that led to where I am right now?
- If others knew more about the influences in my life, how would they perceive me?
- Given the decisions I’ve made in the past, what is the best possible outcome for my life in the months, years, and decades ahead?
IF SMOLLETT, OR ANY CRIMINAL DEFENDANT, TAKES THE TIME TO THINK HARD ABOUT EACH OF THESE QUESTIONS TO PREPARE A NARRATIVE THAT WILL HELP THEIR SENTENCING JUDGE SEE THEIR EFFORT AND SINCERITY, DO YOU THINK IT WOULD HELP?
Key Takeaways From Smollett’s Sentencing
- Despite his fame, money, and extensive legal team, Smollet did not do the work we think effective sentence mitigation requires. As a result, he ended up with a sentence that was not what they hoped for.
- Mitigation efforts are not a guarantee, but they can be very helpful if people take steps to address the likely negative perceptions of the judge. At a minimum, defendants who put in the work never leave the process wondering or regretting that the judge did not have the complete picture of the defendant’s mitigating factors.
- Defendants have to put in the work; they have to get involved and not just let others do the heavy lifting. As Judge Linn stated, for sentencing, he has to consider the person, not just the crime, and try to figure out who the person is before him and how they ended up in front of him.
- Defendants cannot ignore the elephant in the room without preparing to pay the price. Smollett had significant aggravating factors that were left unanswered (premeditation, lying, harm to the City, etc.). For example, could Smollett have apologized to the City of Chicago for all the commotion that his fame caused? After all, the City was not happy.
- Chicago Mayor Lori Lightfoot said in a statement after Smollett’s sentence: “The malicious and wholly fabricated claim made by Mr. Smollett resulted in over 1500 hours of police work that cost the City over $130,000 in police overtime. The City feels vindicated in today’s ruling that he is being held accountable and that we will appropriately receive restitution for his actions.” Maybe Smollett could have offered to pay for the police overtime costs that went into the case and avoid these sentiments somewhat.
- The questions regarding the harm to the City of Chicago, the primary direct victim, are only intended to get people thinking creatively about possible ways to mitigate. Every case is different, and the specific strategies depend on the case, the defendant, and the legal advice they receive from their counsel.
- Simply saying that the defendant is a good person who cares about social justice issues was not going to be enough to move Judge Linn. We now know that. Hindsight is 20/20. Still, defendants have to work harder than Smollett did to understand what their sentencing judge might be thinking and feeling. Judges take sentencing very seriously, and defendants must show their judge that they also do.
- The argument that a defendant has suffered enough is quite common. It is often also true. However, in our opinion, defendants should not put all their eggs in that basket, thinking it’s enough to compel the judge to grant an alternative to prison or a downward departure. It was clearly not enough for Judge Linn, who told Smollett, “you did this to yourself.” During sentencing, Judge Linn repeatedly said to Smollet that there was nothing he could do to him that could be worse than the self-inflicted damage Smollett had already done to himself.
Conclusion
It is never too early or too late for a criminal defendant to begin taking steps to do better. The same goes for Jussie Smollett. Smollett can overcome this current challenge through the criminal justice process with the right plan. He can start with a copy of Earning Freedom, one of our free resources that help people understand the necessary work. If other people can do it, so can he.
