Will Jussie Smollett go back to jail?

A court order issued Wednesday sent Jussie Smollett home from the Cook County Jail to await the outcome of his appeal of his conviction for faking a hate crime.

But whether Smollett ever has to return to jail — even if the appeal doesn’t overturn his case — remains to be seen.

Smollett was released on an appeal bond just six days after he was led from Judge James Linn’s courtroom for a five-month stint in the jail that was to be the start of a 30-month probation sentence. A three-judge panel of the Chicago-based First District Appellate Court ordered that Smollett could go free, finding that the actor would likely have served his five months before his appeal would get a ruling.


And indeed, roughly two-thirds of criminal appeals take two or more years to work their way through the First Appellate District, the state’s busiest appeals court. Cases where defendants face far longer time than Smollett’s sentence routinely serve out their sentences before they get a ruling.

"The Appellate Court made a very astute decision [to release Smollett] while his appeal is pending," Smollett’s attorney Shay Allen said. "We are confident that will continue and Mr. Smollett should not have to serve any jail time."

Smollett’s and his legal team may believe the actor is innocent and his trial last year rife with critical errors. But even if they can’t convince a higher court they’re right, Smollett might not end up back in jail, experts say.

The court’s order said that the "incarceration" portion of Smollett’s sentence was suspended, which apparently means the clock is continuing to run on the probation term, said veteran attorney Stephen Richards. If it takes longer than 30 months to get a ruling in Smollett’s case — so long as Smollett abides by the terms of his probation — his sentence would have been completed, Richards said.

Smollett also was ordered to pay restitution to the city of Chicago totaling $120,000 — the balance of the cost of the 2019 police investigation that began when Smollett reported he’d been attacked — but Richards said that typically would not come due until the end of his sentence.

It’s possible the court could find against Smollett on some or all of his case, and send the case back to Linn and allow the judge to extend Smollett’s sentence and re-impose jail time, but that would likely trigger another appeal, Richards said. The court ruling also could impose jail time on Smollett, but that also could be appealed.

"It’s an interesting question, and the argument might be that Judge Linn wanted Smollett to serve 150 days and the court might try to let him," Richards said. "But generally, if you appeal your case, you can’t get more time."

No limits on Smollett’s movements

Smollett has begun probation, and his bond paperwork indicates he will be living in New York. Linn’s sentence did not impose any limits on his ability to travel while on probation, and would allow him to make reports to probation by phone. Asked if Smollett would be subject to the random visits to his home by probation officers or periodic drug testing, Allen said such conditions were dependent on the probation office’s decisions about what was appropriate for the actor.

Appeals from Cook County, one of the nation’s busiest court systems, take months just to gather court transcripts and files, with months more between deadlines for filings that in turn may take months for the court to review, said attorney Steven Decker. Oral arguments add months more still. And, Smollett’s case — despite the massive public attention devoted to it — is unlikely to get the kind of attention from appellate judges that would put it on a fast track to a ruling, Decker said.

"Of all the cases going through the first district, this is a low-level felony with a defendant that is not presently incarcerated," Decker said. "This is not the most important case facing the court."