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Charged with faking it: 5 felony charges Jussie Smollett could face

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Jussie Smollett

Actor Jussie Smollett stands accused of faking an elaborate hate crime against himself: a choreographed, self-inflicted beating staged with two Nigerian brothers, pre-canned racial slurs, and an actual noose.  So what are some of the criminal charges Smollett could face? 

After conferring with a number of criminal law attorneys, here are five charges Jussie Smollett could be facing.

Before jumping into the law in this case, here are the relevant allegations (and a reminder that these are allegations and have not been proven in court): 

Prior to the event, Jussie Smollett is alleged to have

  • mailed a threatening letter to himself at work;
  • given two Nigerian brothers $100 to buy a rope and gear;
  • written a check to one of the brothers for $3,500; and
  • instructed the brothers to stage a mock beating, pour gasoline on him, tie a noose around his neck, and to use racial slurs.

After the hoax, Jussie Smollett is alleged to have

  • beaten himself in the face to enhance his injuries;
  • reported the “crime” to police as if it were real;
  • included false info such as claiming that one of the perpetrators appeared to be white; and
  • made similar claims to the press.

So, if these allegations are true, was this bizarre performance criminal?  Here’s a quick and dirty list of five potential felony charges Smollett could face, in order of probability.

Felony #1: Filing a False Report (720 ILCS 5/26-1(a)4).   OK, this one is cheating as this charge was already brought against Smollett in Illinois criminal court on Feb 21.  To be convicted, Smollett would have had to know that the police report that he filed was untrue at the time he made it. Smollett has posted bond for his $100,000 bail and is awaiting trial (and potentially further charges, see below).  Under Illinois law, this is a class 4 felony. 

Potential jail time: 1 to 3 years.

Felony #2: Illinois Obstruction of Justice (720 ILCS 5/31-4).   Obstruction of justice is a crime by which someone intentionally interferes with a government prosecution.  Key to an obstruction charge is a “corrupt” intent.  As former prosecutor and Brooklyn Law professor Bennett Capers puts it, “the person would need to be acting with the intent to impede an investigation.” With Smollett, obstruction charges could stem both from the original fabricated report and the continued effort to mislead law enforcement to pursue false leads.  Under Illinois law, this is a class 4 felony. 

Potential jail time: 1 to 3 years.

Felony #3: Federal Mail Fraud  (18 U.S.C. §1341). While the vast majority of the focus has been on the staged assault, the allegation of a death threat letter sent by Smollett could pack an even larger punch.  Using the mail to threaten someone’s life or in furtherance of any crime could earn Smollett an added mail fraud charge and additional jail time.  Interesting tip: mail fraud doesn’t require the use of the USPS, so he could be on the hook even if the letter was sent FedEx.  

Potential jail time: up to 20 years.

Felony #4: Federal Obstruction (18 U.S.C. §1001).  Similar to Felony #2 above, if Jussie lied to the FBI in an effort to protect himself, he could be charged with obstruction under federal law.  Similar to the Illinois obstruction of justice referenced in Felony #2, the intent simply needs to be to get in the way, misdirect, or hinder the FBI on their path to the truth.  Unfortunately for Smollett, the federal version of obstruction packs a bigger punch in terms of incarceration. 

Potential jail time: up to 5 years.

Felony #5: Hate Crime (720 ILCS 5/12-7.1).  This one is admittedly less likely to see a grand jury, but in conspiring to stage a hoax hate crime, Smollett may have in fact committed a hate crime.  Under Illinois law, to commit an assault “by reason of” the victim’s race or sexual orientation could qualify as a hate crime.  Additionally, while consent from the victim can be used as a defense against assault (take football as an example), courts have determined that consent cannot be used as a defense in certain high risk circumstances.  It is possible that, given the shocking nature of what is alleged, Illinois courts could choose to ignore the consent of the “victim” and pursue charges. Under Illinois law, this is a class 3 felony.

Potential jail time: 5-10 years.

It’s important to keep in mind that just because a charge is possible doesn’t mean it will be brought. In U.S. courts, filing a false report is sometimes charged as a simple misdemeanor.

That said, not everything is easier for celebrities.  Prosecutors are known to pursue more serious charges in high-profile cases to set a public example.  According to celebrity defense attorney Ben Brafman, “As a celebrity you are sometime singled out for more extreme treatment than an ordinary citizen.”

If that logic holds true, Jussie Smollett­­―celebrity victim turned defendant―could be facing significant jail time.     

Joel Cohen Joel Cohen is the founder and CEO of TalksOnLaw, a legal media and education company based in Manhattan. He writes and speaks on contemporary and controversial legal issues. Prior to TalksOnLaw, Joel worked at Skadden Arps, where his practice focused on cross-border transactions, corporate strategy, and mergers & acquisitions. A student of public speaking and policy, Joel has worked as a speechwriter and strategist both in the US government and within the UK parliament. He also has a passion for the environment and was appointed by the Government of Argentina as an economist on international environmental matters