Smollett was convicted of staging and falsely reporting a hate crime against him in 2019. Smollett, who is Black and gay, said the attackers, wearing red MAGA hats, shouted racist and homophobic slurs at him before putting a noose around his neck. 

In 2021, he was found guilty of five counts of disorderly conduct and sentenced to 150 days in jail, 30 months of probation, and ordered to pay more than $130,000 in restitution. He has served only six days of that sentence. 

Smollett’s attorney Nenye Uche said his client’s case should never have gone to trial because there was an agreement between Smollett and the Cook County State’s Attorney’s Office. He said they agreed to dismiss the original charges in exchange for community service and Smollett forfeiting his $10,000 bond.  

Sean Wieber, special assistant attorney general, told the court that there is no record of a non-prosecution deal between Smollett and prosecutors.

“He had a baker’s dozen of lawyers for this process, he was well counseled, he got the relief that is on the record that his lawyers stood up and said, quote, ‘I absolutely agree with’,” said Wieber.  

In December the Appellate Court of Illinois agreed and voted 2-1 to uphold Smollett’s conviction. The court ruled despite the original charges being dropped, there was never an agreement that the charges couldn’t be reintroduced. 

The Supreme Court has not given a timetable on a possible decision.