Few things are as universally misreported as federal sentencing, both because it’s hard to grasp and it involves math. Consequently, the Special Counsel’s sentencing memo regarding Paul Manafort has been largely misunderstood. The memo opens with the totally ordinary statement that Mueller’s office does not dispute the Presentence Investigation Report’s calculations of the Federal Sentencing Guidelines.
As an initial matter, the government agrees with the guidelines analysis in the Presentence Investigation Report (PSR) and its calculation of the defendant’s Total Offense Level as 38 with a corresponding range of imprisonment of 235 to 293 months.
This is not the same as saying that “Manafort deserves up to 24.5 years in prison,” or that “Mueller’s Office Recommends Paul Manafort Serve Up to 25 Years in Prison.” Thats not remotely what Mueller’s office is saying. They are merely agreeing with the guidelines calculations, which are now advisory after Booker and will be subject to argument at sentencing, where the government may choose to address sentence or leave it to the discretion of the judge.
But the reaction to the news, fake though it may be, is what gives rise to the more interesting question. My dear pal and Georgia criminal appellate lawyer, Andrew Fleischman, noted what any principled criminal defense lawyer would see in these headlines.
I mean, Manafort isn’t the world’s best guy. But isn’t it transparently insane to put someone in prison for twenty years for a bunch of non-violent offenses?
For this, he was dragged unmercifully by the unduly passionate.* To be blunt, the nice folks who cry sad tears about our over-incarceration, the wrongful imprisonment of defendants and the gross excesses of sentencing were chomping at the bit to condemn Manafort to life plus cancer. If execution was available, they would volunteer to pull the switch.
How is it that these uberwoke folks suddenly locked arms with the prison forever crowd? My observation at the time was:
The ratio on this twit speaks volumes about people’s carceral nature. Just the other side of the blood lust.
In the responsive twits to Andrew, there were many excuses and rationalizations from both ends of the spectrum, some calling Manafort’s crimes so horrible and serious that they demanded two decades imprisonment, at least. Others compared the sentences given for drugs and rationalized that if some poor black guy can get two decades, so should Manafort. And in conjunction with this view, the fact that Manafort’s offenses were “white collar,” meaning financial and not violent or street crime, was an elitist distinction that justified no mercy.
It’s long been clear that the calls for ending our culture of incarceration were premised on the fallacy of the first-time, non-violent, marginalized drug user. It’s not that such a person doesn’t exist, but they are exceedingly rare. Most of the people who live on Incarceration Planet are convicted of violent crimes, have long rap sheets, and aren’t the sort of folks you would invite to your home for dinner. They’re the yucky convicts nobody wants to think about, and so we pretend they don’t exist and prefer to cry tears for the nice, clean, sad defendants.
But they’re all human beings. They’re not all nice human beings, but still human beings. So too is Paul Manafort. Granted, Manafort has done the one thing that’s unforgivable at the moment, providing aid and comfort to Darth Cheeto, which is a crime for which the woke can never forgive. So off with his head?
It may well turn out that the actual sentence imposed isn’t entirely meaningful, as Trump could certainly pardon him as he did with Crazy Joe Arpaio, who did far worse things to far more people. But that doesn’t change the rank hypocrisy the reactions to the false headlines reflected.
You can’t be all woke and teary-eyed for the excessively sentenced only when you like the poor defendant, but screaming for his head when you don’t. The tough-on-crime right does it. So the woke-as-fuck left is every bit as hateful, as carceral?
He hath shewed thee, O man, what is good; and what doth the LORD require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?
Hate Manafort if you must, but if you have no mercy left for him, then you have no mercy. Your performative wokeness is just a lie you tell yourself to justify your feelings when it’s convenient. Decades in prison for Manafort is ridiculously long, no matter how visceral your disgust.
I think you miss a key point. My objection to @ASFleischman‘s comments were that he treated white collar crimes as worthy of less severe punishment, when they can (and did in this case) do far more damage to society.
— emptywheel (@emptywheel) February 16, 2019
Unfortunately, Marcy prefers not to comment (though she might write a responsive post). I was unaware that Marcy was one of the people who took issue with Andrew’s post, and my post had nothing to do with her. Yet, she raises an interesting point, even if it’s orthogonal to mine. so it seemed worth noting.
*Andrew’s twit was severely “ratio’d” at first, with replies attacking him far outstripping “likes” in support of his twit. When this came on my radar, I made note of this. The ratio has since shifted in the other direction.