Today's deep question: Will Smollett spend a single day in prison?

AP Photo/Charles Rex Arbogast

We’ll know for sure after January’s sentencing hearing, but don’t bet on it. A jury convicted Jussie Smollett of repeatedly lying to the police to perpetrate a hoax hate crime, finding him guilty of five felony counts of disorderly conduct in the process. Each of those counts carries a three-year maximum sentence, but that doesn’t mean that Smollett will have to forward his mail to the Graybar Motel by Valentine’s Day.

Legal analyst Irv Miller tells CBS’ Chicago affiliate that even though these are felonies, Illinois sentencing guidelines on these counts carry a presumptive tilt toward probation, especially for first-time offenders. But is Smollett a first-time offender? Miller brings up a previous charge against Smollett in California where he pled no contest to lying to the police, which Miller predicts prosecutors will emphasize while asking for jail time. And given the risible lies Smollett told the jury on the stand, a judge might be inclined to put Smollett behind bars — for a few months:

The earlier case in LA prompts a good question as to why Smollett didn’t offer a no-contest plea here. Perhaps he figured he could snow a jury just like he snowed his friends in the media and entertainment industries. A no-contest plea (or an Alford plea) would have allowed Smollett to maintain his innocence publicly while claiming to have been a victim of systemic racism, etc etc etc. It would also likely have gotten him a slap on the wrist in the form of probation and a fine, and would have obviated the need to testify under oath in a trial.

Now that he has lied on the stand, and badly, that has to change the situation for the judge, Andrew McCarthy wrote just before the verdict came down. Lying to the police to stage a self-promoting hate-crime hoax is bad enough, but Smollett’s perjury in the trial was an attempt to pervert the entire justice system. The judge simply can’t allow that to pass:

Few things outrage a sentencing judge more than perjury committed in the judge’s presence, in an effort to sway a jury over whose selection and service the judge has presided. Even before there were sentencing guidelines, judges tended to punish trial perjury by sentencing a convicted defendant more severely than would otherwise have been the case. The guidelines simply codify that longstanding practice.

How much more severely? Well, the federal obstruction enhancement is two points. That can be significant. Let’s analogize to my prediction, above, about Smollett. A defendant who was looking at a sentencing range of 18 to 24 months would typically be in guidelines offense level 15 (in criminal-history category I, which applies to first offenders — see the federal guidelines sentencing chart, here). But if the offense level ticked up to 17 due to application of the two-level obstruction enhancement, that sentencing range would jump to 24 to 30 months. And note here that defendants who accept responsibility and express remorse tend to be sentenced at the bottom of their range; by contrast, a defendant who commits perjury has a much greater chance of being sentenced at the top of the range. So, in my example, the difference could mean a full year — a prison sentence of 30 months instead of 18 months.

Moreover, I should stress that the guidelines are advisory. They are intended to bring more uniformity to sentencing (so that there are not scandalous disparities in the terms imposed on defendants with similar histories who commit similar crimes). But the guidelines are not mandatory. As long as the judge adequately explains the sentence imposed, the sentence is within the judge’s discretion. The only real restriction is the statutory term prescribed for the crime — here, 18 years.

Consequently, while I wouldn’t bet on a sentence quite this severe, a five-year sentence, reflecting Kevin’s observation that Smollett would deserve the maximum statutory sentence for perjury, is certainly not out of the realm of possibility (especially if it accounts for both the perjury and the underlying hoax crimes).

Could the judge impose such a sentence? Sure, but we’re talking about a C-list Hollywood celebrity with more than a few A-list friends, too. Some of those will run for cover now that the jury has spoken, but you can also bet that at least a couple will show up to testify to Smollett’s “character,” either in court or in the media, and amplify Smollett’s claim to have been railroaded in an extraordinary prosecutorial effort. There will also likely be some “fake but accurate” rationalizations for Smollett’s behavior akin to the Forrest Gump “lyin’ Johnson and the g*****ned war” excuse. There will be still more arguments that will claim that Smollett’s humiliation and almost-certain exile from Hollywood will have been punishment enough for a serial fabulist.

And for good measure, the judge in this instance might be inclined to see Smollett as something slightly less than a public menace and a danger to the peace at this time. With jails and prisons overflowing and violent crime skyrocketing, a judge might decide that the space could be put to better use. I’d disagree with all of that, especially given Smollett’s cynical and self-promoting exploitation of social ills and the damaging effects they have had, but I’m not the sentencing judge either.

Real justice would be the five-year term Andrew McCarthy foresees. Actual justice in this case is likely to look a lot different, unfortunately.

By the way, Smollett plans to appeal:

Jussie Smollett has yet to be sentenced for being found guilty today of faking a hate crime attack on himself nearly three years ago, but the Empire actor isn’t over fighting this case.

“The verdict is inconsistent,” defense lawyer Nenye Uche said this evening in the lobby of the Leighton Criminal Courthouse after a jury found Smollett guilty of five of six felony charges on Thursday. “You can’t say Jussie is lying and say Jussie is not lying for the same exact incidents,” the attorney proclaimed.

“We feel 100% confident that this case will be won on appeal. Unfortunately, that’s not a route we wanted, but sometimes that’s the route you have to take to win.”

Good luck with that. Appellate courts are loathe to re-hear the facts of a case, especially to unwind a complex jury verdict. Typically they limit review to the manner in which a trial was conducted. And technically, the jury didn’t decide that Smollett didn’t lie in the sixth count, but merely that the prosecution hadn’t made that case beyond a reasonable doubt. The fact that the jury parsed through those counts in that fashion suggests a dedication to their work, not necessarily a contradiction. This appears to be part of the same sparkling legal advice that led Smollett to insist on a trial and then commit perjury under oath. Maybe it’s time for Smollett to find new attorneys.

By the way, the city of Chicago still has its lawsuit coming up against Smollett. It may be that the only real justice in this case will be in Smollett’s wallet.

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