Jussie Smollett's lawyers file emergency injunction to have ex-'Empire' actor released from jail

CHICAGO - Former "Empire" actor Jussie Smollett will spend his five-month sentence at the Cook County Jail under protective custody, according to court records.

Judge James Linn approved a request submitted Thursday by Smollett's attorneys that the 39-year-old be held in a cell by himself monitored continuously by cameras and guards.

The action is neither unexpected nor unusual: High-profile and other at-risk detainees are usually kept segregated from the jail’s general population.

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The Cook County Sheriff’s Office said Smollett will be housed in his own cell "monitored by security cameras in the cell and by an officer wearing a body-worn camera who is stationed at the entrance of the cell to ensure that Mr. Smollett is under direct observation at all times."

He will be allowed "substantial time" outside his cell in the common areas on his tier, and will be "able to use the telephone, watch television and interact with staff," the office said.

However, "during such times out of the cell, other detainees will not be present in the common areas," the office added.

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The sheriff's office said Smollett is not being held in solitary confinement, adding that solitary confinement was abolished at the Cook County Jail in 2016.

In addition, Smollett's attorneys on Friday filed an emergency injunction to have him released from jail. His lawyers are also appealing his sentence.

Smollett was sentenced to 30 months probation Thursday, with Judge James Linn ordering him to serve the first 150 days behind bars, as well as pay a $25,000 fine and $120,000 to the city of Chicago as restitution for the cost of the extensive investigation into his bogus claims.

Smollett is likely to only serve 75 days in custody because he is eligible for "day-for-day" credit for time served.

After Linn handed down his sentence Thursday night, Smollett began yelling that he was both innocent and not suicidal. "And if anything happens to me when I go in there, I did not do it to myself. And you must all know that," Smollett shouted as he was led away by deputies.

Smollett asked to be placed in protective custody and Linn signed an order requesting it, according to court documents filed after the hearing. The decision, though, is ultimately up to the sheriff’s office, which runs the jail and has wide latitude in how it manages the population of just over 6,000 detainees.

Smollett’s outburst — and concerns voiced by his attorneys — mean the actor will be watched particularly closely in jail, according to legal experts. In fact, he won't have any privacy. 

Defense attorney Steve Greenberg said protective custody would have been ordered anyway.

"Any inmate like Smollett is going to be put in some form of protective custody because of the liability issues for the jail if something happens to them. I don’t think his outburst yesterday had anything to do with where they placed him," Greenberg said.

"I can tell you, next to Smollett, probably the second-most upset person with his being sent to jail was probably the Cook County Sherriff because of the amount of resources that now have to be devoted to Mr. Smollett.

Pressed about Smollett’s comments, lead defense attorney Nenye Uche referred to the 2019 death of financier Jeffrey Epstein while in custody at the Metropolitan Correction Center in New York City on sex trafficking charges.

His death was ruled a suicide, but nonworking surveillance cameras and the nature of his injuries have fueled conspiracy theories and it is the subject of a continuing investigation.

Jussie Smollett | Cook County Sheriff's Office

"He was doing it for a specific reason," Uche said of his client. "Because let’s be honest when you have the Epstein situation, where he was found dead in his jail, even in protective custody.

"What Mr. Smollett was concerned about was, what if he turns up dead in protective custody? He doesn’t want anyone to think he killed himself," Uche said.

Uche said he understood the concern, claiming he had "sued a lot of jails for unexplained deaths." He threatened to sue the Cook County sheriff’s office should anything happen to Smollett while in custody.

"If anything of course happens to Mr. Smollett … I would sue the jail," Uche said. "So I expect professional conduct, I expect him to be protected."

Even so, Uche said he worried about Smollett being cut off from contact with others while in jail. "Protective custody is isolation, that’s mental isolation," he said. "Of course the flip-side to the coin is if you put him in general population, his life is at risk."

Protective custody is not the same as solitary confinement, which Sheriff Tom Dart has said was ended in 2016. The sheriff’s office did not immediately respond to a request for details about Smollett’s confinement.

Smollett underwent the jail’s standard intake process Thursday night. He was given a comprehensive medical and mental health evaluation, tested for COVID-19 and offered a vaccine, if he has not already been vaccinated, officials said.

Detainees are held in isolation for a period of time as part of the jail’s efforts to contain the spread of the virus. As of Thursday, 12 detainees tested positive for the coronavirus, all at intake, the sheriff’s office said.

Smollett, who is Black and gay, was convicted by a jury in December on five out of six felony counts of disorderly conduct for false statements he made to Chicago police officers claiming he was the victim of a racist and homophobic attack on Jan. 29, 2019 near his Streeterville home.

The Sun-Times Media Wire contribute to this report.