Jussie Smollett allegedly staged the attack as a publicity stunt because he was unhappy with his salary, police said
Tom Ahern, deputy director of news affairs and communications for the Chicago police, wrote on Twitter after Smollett’s Wednesday arrest that Smollett faces a “Class 4 Felony charge (punishable for up to 3yrs in prison).”
Ahead of Smollett’s first court appearance, PEOPLE spoke with Arthur Lurigio, associate dean and professor of psychology and criminal justice at Loyola University Chicago, to learn more about what could happen to Smollett if he is found guilty of the crime.
Lurigio tells PEOPLE that if Smollett is guilty on the felony charge against him, he could conceivably get three years in prison — but Lurigio says the judge will have a lot of discretion and that probation is “likely.”
“For the nature of the [alleged] crime of the defendant and the defendant’s prior history, I would say likely probation,” he says.
Lurigio adds that a Class 4 felony in Illinois is “the lowest level of a felony charge.” He adds, “A crime at that level will likely get a couple of years probation and a fine, and a fine can be hefty. The fine can be six figures.”
He says “probations have several conditions,” including that he would not be allowed to leave Cook County “or travel out of state without special permission from [the] judge.”
Lurigio says that it’s possible the case could be pleaded down to a misdemeanor, in which case his probation would only be one year and would be less severe as well as a fine that isn’t as steep.
A defendant’s criminal history can be relevant as well, Lurigio says.
After a 2007 DUI arrest in California, Smollett pleaded no contest to misdemeanor giving false information, driving under the influence and driving without a valid license, the Associated Press reports. He was sentenced to two years probation.
But Lurigio says Smollett’s “criminal history is a minor one and not likely to make more serious the sentence that the judge would impose.”
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The initial report about the alleged attack on Smollett raised alarm: The openly gay black actor claimed to police that he’d been physically attacked on the street in his downtown Chicago neighborhood around 2 a.m. on Jan. 29 by two black-clad, masked men who hurled racist and homophobic slurs, doused him with an “unknown chemical substance” and left him with a rope around his neck.
“Smollett may get a fine to pay for the expenditures that were wasted in an investigation of a crime that [allegedly] never occurred. He will likely get probation plus a fine,” Lurigio said. “The police superintendent, rightly so, expressed outrage. They had 20 detectives investigating this case. It was very costly.”
The arrest news comes after Smollett and his legal team said they are gearing up to launch an “aggressive defense.”
“Like any other citizen, Mr. Smollett enjoys the presumption of innocence, particularly when there has been an investigation like this one where information, both true and false, has been repeatedly leaked,” Smollett’s attorneys Todd Pugh and Victor Henderson said in a statement given to PEOPLE on Wednesday.
“Given these circumstances, we intend to conduct a thorough investigation and to mount an aggressive defense.”