An appellate court on Wednesday ordered that Jussie Smollett be released from custody pending his appeal after a judge had sentenced him to five months in jail for staging a racist and anti-gay attack against himself.
In a 2–1 ruling, the Illinois Appellate Court granted Smollett's request to stay his sentence and granted him bond. Last week, Cook County Judge James Linn had sentenced Smollett to 150 days in jail as part of a 30-month probationary sentence, which he began immediately following the hearing.
The appeals court ordered that Smollett be released after posting a personal recognizance bond of $150,000.
At about 8 p.m. local time on Wednesday, Smollett, 39, walked out the Cook County jail, live video from WGN-TV showed.
"Obviously the Smollett family are very, very happy with today’s developments," Nenye Uche, one of Smollett's attorneys, told reporters outside the jail after his release. "There is no room for politics in our court system and our appellate court in this great state do not play politics."
Smollett was booked last Thursday immediately after Linn issued his sentence, which came more than three years after the actor told Chicago police that two men yelling racist and anti-gay slurs attacked him, poured a chemical on him, and tied a rope around his neck. The former Empire actor has continued to maintain his innocence even after a jury convicted him in December of five felony counts of disorderly conduct for making a false report to police.
During his sentencing hearing last week, Smollett declined to make a statement prior to learning his fate. But after Linn announced his decision — and rebuked Smollett in a roughly 30-minute speech, telling him, among other things, that he hurt real hate crime victims — the actor stood up and again professed his innocence and repeatedly said, "I am not suicidal."
"I am innocent and I am not suicidal," Smollett said. "If anything happens to me when I go in there, I did not do it to myself and you must all know that."
Smollett's legal team immediately asked Linn to stay the sentence but he refused. The next day, Smollett's attorneys filed an emergency motion asking the appellate court to step in, citing "vicious threats" on social media and potential damage to his mental health as reasons to grant the stay, according to court documents.
"Mr. Smollett anticipates he will most likely be assigned to segregated incarceration or protective custody, both euphemisms for solitary confinement; a situation which could have extraordinary damage on his mental health," his attorneys wrote. "As a result, any custodial setting poses a safety and health danger to the life of Mr. Smollett."
The filing stated that if the stay was not granted that it was likely Smollett would serve his jail sentence before the appeal process was completed, "creating irreparable harm" and making the issue of incarceration "moot to the detriment of Mr. Smollett."
In their response to the emergency motion, attorneys with the special prosecutor's office argued that there was no "justifiable reason" to stay Smollett's incarceration, "let alone one that constitutes an emergency."
They also noted that Smollett's legal team is likely to raise issues in their appeal that have already been "thoroughly litigated" at the trial court.
"In the end, Mr. Smollett relies on half-truths and misleading statements, at best, to manufacture an alleged emergency to prompt the Court to overrule the trial court’s sentence," prosecutors wrote.
In its one-page order, the court acknowledged that Smollett was convicted of nonviolent offenses and that it would have been unable to deal with his appeal before his jail time was completed.
Police initially arrested two brothers who had been background actors on Empire in connection with the Jan. 29, 2019, incident, but released them after investigators said new evidence had surfaced during their questioning. Authorities then accused Smollett of paying the men $3,500 to stage the attack in order to generate sympathetic media coverage.
Smollett was then indicted by the Cook County state's attorney's office, but weeks later prosecutors dismissed the case in exchange for him forfeiting his $10,000 bond and agreeing to two days of community service. In February 2020, special prosecutor Dan Webb unveiled a new grand jury indictment against the actor, finding "further prosecution of Mr. Smollett is in the interests of justice."
Since then, Smollett's attorneys have maintained that the actor never should have been indicted a second time.
"Is it right for a person to be punished twice," Uche said, as he pressed journalists to report on the constitutionality of that. "Do your job. Get out there. Ask the right questions."
Uche said Smollett appeared to be shocked when he learned that he was being released on Wednesday, saying that he put his hands on the glass that separated them as his eyes watered.
"I think he had nearly given up," Uche said.
He said Smollett had not eaten any food during his six days in jail but couldn't say why or if it was in protest of his sentence.
"If I was in jail for something I didn't do ... I doubt [I'd] be eating," Uche said.