Jussie Smollett and the Illinois Film Tax Credit

By Sam Brunson

On Tuesday, Joe Magats, first assistant state’s attorney for Cook County, announced that he was dropping the charges against actor Jussie Smollett. Instead of a trial and punishment, Smollett agreed to forfeit his $10,000 bond and do community service.

Cook County prosecutors say this is a relatively normal type of alternative prosecution, one that prosecutors have recommended for over 5,700 offenders. It allows prosecutors to use their resources to prosecute violent offenders.

Not surprisingly, there’s some outrage about this alternative prosecution, notably from Chicago Mayor Rahm Emanuel and CPD Superintendent Eddie Johnson. But this is a tax blog, not a criminal justice blog, so questions about the justice (or not) of dropping Smollett’s prosecution are outside of our usual scope. Which is why I’m going to focus, instead, on Illinois Representative Michael McAuliffe and his terrible, horrible, no good, very bad bill.

See, Mayor Emanuel and Superintendent Johnson weren’t the only ones to express outrage on Tuesday. Rep. McAuliffe announced that, sometime this week, he would be filing a bill prohibiting movies or TV productions that hired Smollett from qualifying for the Illinois Film Tax Credit or various other Illinois tax credits.

I realize, of course, that McAuliffe’s proposed bill is performative, not substantive. He’s using this proposed bill to signal that he thinks that what Smollett did is really, really bad, and that he wants to remedy it. But his proposal is both bad tax policy and almost certainly unconstitutional.

I mean, okay, offering film tax credits is, by itself, a pretty bad tax policy. If Rep. McAuliffe proposed to eliminate them altogether, I’d be applauding his decision. But singling out productions that hire one bad actor (ha!) and denying them the tax credit? That violates the policy norm of horizontal equity, which protects taxpayers from discrimination. It also adds additional complexity: to qualify for the credit, not only must you do the filmy things you need to do in the state, but you also have to ensure that you blacklist certain potential employees.

But not only would his bill make a bad policy even worse, but it almost certainly violates the Constitution. Article I, section 10 of the Constitution provides, in part:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

(emphasis added.) And what is a bill of attainder? In essence, it’s a legislative attempt to declare an individual or group guilty of a crime and to punish them.

The Seventh Circuit has explained that a bill of attainder “consists of three elements: (1) specification of the affected persons; (2) punishment; and (3) lack of a judicial trial.”

The first and the third prongs are easy here: the law applies only to productions that hire Jussie Smollett, and it will not allow for a judicial trial.

But punishment is a slightly more complicated analysis, because punishment doesn’t mean all harm inflicted by the government. Sometimes the legislature has a non-punitive reason for doing something that imposes some harm on individuals. The Supreme Court has established a three-prong test to determine whether a legislative act constitutes punishment forbidden by the prohibition on bills of attainder:

In deciding whether a statute inflicts forbidden punishment, we have recognized three necessary inquiries: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes”; and (3) whether the legislative record “evinces a congressional intent to punish.”

On the punishment front, the second and third prongs are easy enough to answer. Rep. McAuliffe’s statement on his to-be-proposed bill makes it clear that the sole purpose of the bill is to punish Smollett:

“Where the City of Chicago is concerned, Jussie Smollett is far from exonerated,” Rep. McAuliffe continued. “While the State’s Attorney has chosen not to pursue justice in this case, we need to send a message that Smollett’s actions are not a reflection of the values we have in Chicago and won’t be tolerated. His accusations and lies caused a lot of pain to all Chicagoans.”

There’s no suggestion of a nonpunitive purpose, and there is clear evidence that his intent is to punish Smollett.

And how about the historical meaning of legislative punishment? Traditionally, that meant, among other things, imprisonment, banishment, and the punitive confiscation of property. But the Supreme Court announced that, in the United States, at least one other type of legislative punishment had developed: “a legislative enactment barring designated individuals or groups from participation in specified employments or vocations.”

Does the denial of the film tax credit bar Smollett from acting? I mean, not entirely—the law doesn’t say he can’t act. But it does function to significantly deter employers in his field from hiring him—the film credit is worth 30% of certain costs incurred by the production.

FWIW, I haven’t been able to find any cases that say explicitly that withholding a tax credit is a bill of attainder. But my searches are clogged with tax protestors, who apparently commonly make the frivolous claim that the tax law is a bill of attainder, that a particular provision of the tax law is a bill of attainder, or that labeling them as tax protestors (and fining them for making tax protestor arguments) is a bill of attainder.

In spite of the lack of direct authority, though, Rep. McAuliffe’s proposal walks like a bill of attainder and quacks like a bill of attainder and floats like a bill of attainder. So I suspect that his bill, if it were to pass, would be struck down as unconstitutional.