But for his connection to Trump, nobody would have cared what sentence Senior EDVA Judge T.S. Ellis imposed on Paul Manafort. But he was a proxy for Trump, and consequently there was no way this sentence wouldn’t explode in the news. The only question was how, and that question was dependent on how long.
There’s a temptation to predict such a newsworthy sentence. Ken White resisted, and humorously blamed the scowl he knew would be on my face if he did, but really understood both the futility of such mischief and the likely damage that comes from making such “wild-ass guesses.” Expectations are created and, when unmet, create questions that aren’t real, calling for explanations as to why the sentence varied from some random number plucked out of thin air.
Had I been Judge Ellis, I would have imposed a sentence of 120 months. But I’m not the judge, and neither know what the judge knows about the case and the defendant nor have the Senate’s blessing. What I would do is utterly meaningless as far as what Judge Ellis, or any other judge, would do, and we would all find out soon enough when sentence was imposed.
Manafort faced a Sentencing Guideline of Level 37, criminal history category I, the range was 210 to 262 months. Judge Ellis sentenced Manafort to 47 months. As expected, wilder heads exploded and calmer heads were, at most, surprised.
I have already seen lots of Twitter commentary complaining this sentence is way too lenient, but I sense many of the complaints really stem from folks rightly seeing a lot of other sentences as way too harsh. Title 18 USC § 3553(a) calls upon a federal judge to impose a sentence “sufficient, but not greater than necessary, to comply with” traditional sentencing purposes. I have a hard time developing forceful arguments that a nearly four-year prison term for a nearly 70-year-old man, plus a $50,000 fine and $24 million in restitution, is not sufficient in response to a nonviolent crime.
Thoughtfulness like this, however, has no place in legal discussion these days, particularly when there’s a tool to be used to promote a cause. While some used the sentence as a reminder that we’ve grown to expect needlessly long and Draconian sentences, and that all sentences would do better to reflect this degree of parsimony and, perhaps, mercy, others seized upon it as proof of racism and classism in the legal system, using whatever they could to press their point.
The leniency shown by Judge Ellis, of the Federal District Court in Alexandria, Va., toward Mr. Manafort carries the whiff of miscarriage of justice, especially given how the criminal justice system routinely treats people without Mr. Manafort’s wealth, influence or skin color.
This paragraph pained me, as it was written by my former Fault Lines writer, now New York times editorial board member, Cristian Farias. While temperate in condemnation, the link is deeply troubling.
For context on Manafort’s 47 months in prison, my client yesterday was offered 36-72 months in prison for stealing $100 worth of quarters from a residential laundry room.
— Scott Hechinger (@ScottHech) March 8, 2019
Hechinger, while a lawyer working for Lisa Schreibersdorf’s Brooklyn Defender Service, plays fast and loose for the sake of riling up the groundlings with claims that, giving him credit for not being a dolt, are ridiculously false. Assuming the “my client yesterday” anecdote is true, we have no clue how many prior convictions the defendant has, whether he’s been convicted of multiple violent felonies, whether he raped babies or murdered old ladies.
But more to the point, it’s absurd to compare a New York state court plea offer of 3-6, which may well have been the minimum sentence available, with a federal sentence. If an advocate seeks to outrage the ignorant, this is how you do it, but it’s disingenuous and designed to make people stupider.
It’s bad enough that Hechinger has become a folk hero to the unduly passionate, but simplistic people are the easiest to game, their emotions raw and brain disengaged. That Cristian linked to this tripe, however, compounds the problem of trying to fix real problems with false outrages.
In response to the wild cries that had Manafort been black, he would never have been given the “daintiest slap on the wrist,” I twitted the best, and only, empirical number available.
U.S. Sentencing Commission found black men get 19.1% higher sentence for same offense as similarly situated white men. https://t.co/AYsiVtGuNP
— Scott Greenfield (@ScottGreenfield) March 8, 2019
The 19.1% stat is a flawed number by necessity. It’s impossible for the court system to account for every variable that can be dreamt up by the either side of the divide, far beyond what the unwashed believe to be important to a judge in sentencing. It doesn’t necessarily reflect racial bias, even though that’s exactly what it appears to mean on its surface, as there are too many other variables that aren’t, and can’t be, taken into account. But it doesn’t preclude it, either.
But then, Bernie Madoff was white and wealthy, and he got 150 years, a death sentence for a man over 70. Jeffrey Skilling got 24 years. Bernie Ebbers got 25. Ken Lay got 45 years, later reduced to 14. Nobody seems to remember any of these guys, white guys, rich guys.
As for Manafort, a guy nobody would have cared about but for his tie to Darth Cheeto, the sentence may well be viewed as lenient in contrast to our gross impression of the damage the legal system does to others, but does it show what some are trying so hard to make it show?
No two sentences are alike — in the federal system and in the states, judges retain wide discretion to sentence defendants or could be hand-tied in the sentences they impose. But if the failed war on drugs and the era of mass incarceration have taught us anything, it is that there are two tracks of justice: one for those who can afford expensive defense counsel and who can move heaven and earth to receive mercy, and one for everyone else.
That’s the narrative being sold, and there is no shame in using whatever nonsense is available to sell it. It’s not that sentencing inflation hasn’t driven the irrational belief that longer, harsher is better, but that it’s about race and wealth. Tell that to Bernie.