If you have been living under a rock for the last couple of months, and more importantly the last couple of days, you may have missed a couple of things. First, you may have missed that actor Jussie Smollett claimed that he was a victim of a hate crime in an alleged assault by unknown perpetrators. Smollett was subsequently charged with 16 felonies after Chicago Police claimed, among other things, that he falsely reported a hate crime and paid the alleged perpetrators to attack him (For a more detailed timeline of Smollett’s case, go here).
Second, on March 26, 2019 Chicago prosecutors announce that they are dismissing the charges that were brought against Jussie Smollett in light of Smollett’s volunteer service in the community and Smollett’s agreement to forfeit the bond he had posted. Immediately after the announcement, it appeared that Smollett had claimed victory and indicated that he has always been truthful about his reports.
SO, WHAT HAPPENED….
After the announcement, many (including Chicago’s mayor and Chicago PD) were left scratching their heads wondering why the prosecutor dropped the charges. While the public will likely never figure out exactly what happened, one plausible scenario is that Smollett and the Chicago Prosecutors entered into a deferred prosecution agreement. So, what does that mean?
[DISCLAIMER: I do not practice criminal law in Illinois or Chicago. I do not know the norms and customs of practicing law in that jurisdiction and my experience practicing criminal law has taught me that understanding the jurisdiction your’re practicing in can mean a lot. The purpose of this post is to offer at least some explanation as to what could have happened to Smollett and use Smollett’s example to provide an understanding of how deferred prosecution agreements work.]
In criminal prosecutions, the prosecuting attorney has a tremendous amount of power and discretion. One area of discretion is that the state prosecutor has the ability to file or not file charges. If filed, the state prosecutor could also decide to dismiss those charges and later re-file the charges if they are still within the statute of limitations for the charges.
Enter the Deferred Prosecution Agreement – Sometimes prosecutors will agree to dismiss the charges under this type of agreement. At a minimum, the terms of the agreement are that the prosecutor agrees to dismiss the charges in exchange for the Defendant abiding by specific conditions. These conditions could be a number of things including no further arrests or law violations and completion of community service or drug/alcohol treatment. If the Defendant successfully complies with the terms of the deferred prosecution agreement, then the Prosecutor agrees not to re-file the case against the Defendant.
It’s easy to see how Smollett’s case falls into the deferred prosecution agreement. First, the dismissal occurred quickly and without knowledge of anyone except those close to the case. Second, the prosecutor’s statements seem to indicate that they dismissed the charges on specific conditions agreed upon by Smollett. Finally, the judge has sealed the record of the case which could possibly be an indicator of the deferred prosecution agreement coupled with the very public nature of the case.
BUT, this is a high profile case and a deferred prosecution would be unusual under these circumstances. Additionally, the fact that Smollett continues to vehemently claim innocence would be unusual under such an agreement as many prosecutors would make the Defendant admit guilt in order to enter into the agreement (however, this is not always the case).
This is just one possibility of many. Other possibilities include the state uncovering evidence that made their case problematic, federal prosecutors indicated to the Chicago prosecutors that they were going to file charges, or many more. It is possible that we will learn more.
If you have been charged with a crime, Smollett’s example is that you may want to talk to an attorney about whether or not you would be a good candidate for a deferred prosecution agreement.