The discussion in the case of Jussie Smollett, the actor convicted on Thursday of falsely reporting he was the victim of a racist and homophobic attack, has turned to whether the actor will receive prison time when he is sentenced in several weeks.
Daniel K. Webb, the special prosecutor who handled the case, said on Friday that he had not yet decided on what recommendation he would make to the judge but again emphasized how serious he thought the case was. Mr. Webb has pointed in several settings to the social damage caused by faking a hate crime, about the waste of police resources spent on the case and about the consequences of lying to a jury, which found Mr. Smollett guilty after he spent seven hours on the witness stand standing by his account.
“It’s fair to say Mr. Smollett is not repentant at all,” Mr. Webb said. “And he doubled down during our trial. I will emphasize those matters as I should.”
But some experts said they would find it surprising if Mr. Smollett were to be imprisoned because he was convicted of the lowest level felony offense and has no prior felony convictions.
Mr. Smollett’s lead lawyer, Nenye Uche, a former prosecutor who said his client planned to appeal the verdict, echoed that sentiment on Thursday.
“I’ve never seen a case like this where the person got jail time,” he said. “And he shouldn’t because he’s innocent.”
Mr. Smollett was convicted of five counts of disorderly conduct, which carry a maximum sentence of three years in prison. Even Mr. Webb has acknowledged that those charges don’t typically lead judges to incarcerate people.
But he said: “There’s never been a case like this. I don’t know any case in Illinois that involves this criminal misconduct and deceiving police for weeks on end about a hate crime and then compounding it by lying to a jury.”
Judge James B. Linn, who is presiding on case, has the option of sentencing the defendant to just probation or a shorter period of prison time. He agreed on Thursday to release Mr. Smollett while he awaits sentencing.
“What I could see happening is probation with a ton of community service hours,” said Michael O’Meara, a criminal defense lawyer who has also worked as a prosecutor, “and just to sting him a bit, maybe some jail time.”
The judge will certainly consider Mr. Smollett’s prior criminal infraction, though it was 14 years ago and relatively minor. He was convicted in California of misdemeanor driving under the influence, making false statements to the police and driving without a license. (Mr. Smollett pleaded no contest.)
In this instance, it was Mr. Smollett who reported a crime, an attack by two assailants who he said beat him up, yelled racist and homophobic slurs at him, placed a rope around his neck and poured bleach on his clothing in an early morning assault on a frigid day in 2019. But two brothers told the police that Mr. Smollett had directed them to carry out the attack, and he was ultimately charged by a grand jury with lying to the police, a hoax that prosecutors argued had been orchestrated for publicity.
Understand the Jussie Smollett Trial
A staged hate crime? In 2019, Jussie Smollett, an actor from the show “Empire,” told police he was the victim of a racist and homophobic attack in downtown Chicago. The police concluded that Mr. Smollett had paid two acquaintances to stage the assault.
Others involved. Two brothers, Abimbola Osundairo and Olabinjo Osundairo, told the police that Smollett, who is black and gay, had paid them $3,500 to orchestrate the attack, directing them to shout racist and homophobic epithets at him and place a noose over his neck.
The evidence. A text message between Smollett and Abimsola Osundairo sent four days before the attack has become a key piece of evidence. In it, Smollett discussed needing help and meeting “on the low.” Security camera footage shows Mr. Smollett’s black Mercedes pulling up in an alley behind one of the brothers’ homes that afternoon.
Charges dropped. A month after the attack, the Cook County State’s Attorney’s Office dropped all charges against Mr. Smollett. The office had agreed to a plan where Mr. Smollett would do community service and forfeit the $10,000 bond paid for his release, in exchange for the office dropping the charges, with no admission of guilt.
The case is revived. Later, a judge ordered that a special prosecutor review how the Cook County State’s Attorney’s Office handled the case. On Feb. 11, 2020, the special prosecutor, Dan K. Webb, announced that a grand jury had revived the case with a new indictment, and he criticized the earlier decision to drop the case.
In addition to his sentencing, Mr. Smollett will soon have to contend with a lawsuit against him by the City of Chicago. In 2019, Chicago officials, upset at the amount of police work that was spent on the case, sued Mr. Smollett to recoup more than $130,000 in costs, but it was put on hold until the resolution of the criminal case.
“The city intends to continue to pursue its lawsuit to hold Smollett accountable for his unlawful actions,” lawyers for the City of Chicago said in a statement on Friday, “and to demand that he compensate the city for costs incurred by the Chicago Police Department which took his false claims of harm seriously.”
The verdict in the case drew reactions on Friday from people across the country and across the political spectrum.
A co-founder of Black Lives Matter Los Angeles, Melina Abdullah, told TMZ that Mr. Smollett still has the full support of her organization. She said in an earlier statement that she could not believe the police over Mr. Smollett, who she described as a “Black man who has been courageously present, visible and vocal in the struggle for Black freedom.”
David Axelrod, a political commentator with longstanding connections to Chicago who was a senior adviser to former President Barack Obama, wrote on Twitter that Mr. Smollett had “inexcusably slandered our city to advance his career.” Ronna McDaniel, the chair of the Republican National Committee, and Mercedes Schlapp, who was director of strategic communications in the Trump White House, blamed Democratic politicians, including President Biden, for believing Mr. Smollett in the first place and putting out messages of support.
In a news conference on Friday, Jen Psaki, the White House press secretary, noted that Mr. Trump had also called the attack “horrible” shortly after it occurred. But she acknowledged that false hate crime accusations “divert valuable police resources away from important investigations” and “make it harder for real victims to come forward and be believed.”
Sarah Bahr contributed reporting. Kirsten Noyes contributed research.