Making Use Of Manafort

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.

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.

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.

34 thoughts on “Making Use Of Manafort

  1. Roger

    I believe you’ve misread Berman’s post. The ten-year cap he talked about applied to the DC case, where Manafort has not yet been sentenced, not to Judge Ellis’s case in Virginia.

    Reply
  2. Ryan

    I think you dramatically underestimate the amount of “care” people have toward slap on the wrist sentencing for white collar criminals nowadays, but you have some valid points.

    Reply
  3. Mark

    The problem isn’t that Manafort got 4 years, the problem is that his crimes weren’t taken seriously until SC uncovered them. Manafort is a beacon not of lenient sentences of white collar crimes but of looking the other way while white collar crimes are committed.

    Reply
    1. Patrick Maupin

      There is an understandable inclination to want a longer punishment to account for perceived previously unpunished crimes. That sometimes happens, but, for obvious reasons, the system is much better at tacking on extra time for previously adjudicated crimes.

      Prior convictions are approximately = bad things done * probability of each bad thing having already been detected and punished.

      To the extent that, in general, white collar criminals are in a better position both to avoid detection, and to commit bad acts that may or may not be crimes, the probability side of that equation is greatly reduced, so yeah, it might be really nice to punish Manafort for allegedly helping Putin in Ukraine or whatever else he may have done, but until any of that’s been proven, his lawyers can argue with straight faces that he has no priors.

      As shg pointed out, some first-time white collar criminals do get the books thrown at them, but the real takeaway from most of those cases seems to be to avoid actions that would turn hundreds of little old ladies with missing pensions into character witnesses for the prosecution.

      Of course, you can also get the book thrown at you by being someone that some regulatory agency thinks would be useful as a trophy head in a “scared straight” campaign, but that’s the sort of life-ruining low-probability crapshoot it would be unproductive to spend too much time preparing for.

      Reply
    2. SHG Post author

      It’s easy to detect a murder because there’s a dead body lying around. False bank loan apps aren’t quite as obvious, and even when they stare you in the face, it’s by no means clear that it’s a crime. It seems abundantly easy in hindsight, but remember that we all commit three felonies a day and get away with it. It’s not that people look the other way, but that they hide in plain sight.

      Reply
    3. RedditLaw

      Well, actually . . . EDVA prosecutors knew all about what Mr. Manafort was up to prior to the appointment of the special counsel, but they decided to take a pass on prosecuting him. It was only after he served the Bad Orange Man for four months in 2016 that anyone became interested in his shenanigans . The feeling was that he would have learned in four months all about how Darth Cheeto’s strings were being pulled by Vladimir Vladimirovich and therefore spill the secrets to the special counsel. That there might be nothing to spill about the President and Russia never seems to have occurred to anyone.

      Reply
    4. B. McLeod

      Of looking the other way UNTIL he was stupid enough to step into the political limelight (but for which, they would still be looking the other way).

      Reply
  4. Richard Kopf

    SHG,

    From a guy who has sentence well over a thousand offenders, and who recently sentenced a male white-collar criminal to about 3 times higher than the low-end of the Guideline range, some perspectives on the hypocrisy of the woke outcry on the Manafort sentencing:

    1. According to the 2017 Sentencing Commission report, the absolute difference for similarly situated black and white male offenders in the federal system in 2016 was all of nine months.

    2. From that same report, female offenders of all colors (and shapes) received lower sentences than similarly situated white male offenders. That discount ranged from between roughly 28 percent to 35 percent. Genitalia matters, although you would have trouble finding that factor in section 3553(a).

    3. According to Jeff Toobin, no friend of Trump and his buddies, “[Manafort] has shockingly declined . . . .He walks with a cane. He appears disoriented. He is in terrible shape.”

    4. Every writer for the Atlantic or the New Yorker who claims to be a sentencing expert wants federal judges to exercise their vaunted discretion, and sentence the whole person–until they don’t. So, a formerly rich white guy, who is about 70 and previously lead a blameless life, and who suffers serious medical problems, should be sentenced to death ’cause he didn’t pay his taxes and ’cause he stole from the poor banks.

    For what it is worth, I would have sentenced Manafort to 262 months ’cause I hate his taste in jackets. (I would have substantially reduced that number had he instead possessed the good taste to wear a Saint Laurent Signature Motorcycle Jacket.)

    All the best.

    RGK

    Reply
    1. SHG Post author

      Wondering whether there will be a run on Saint Laurent Signature Motorcycle Jackets in Lincoln in the near future.

      Reply
      1. Richard Kopf

        SHG,

        Not to worry. The Saint Laurent wagon train doesn’t deliver to Lincoln.

        If, however, you want a Carhartt, that is an entirely different story. But, I must warn you. Show up for sentencing in one of those, wearing Carhartt lined pants and steel toe work boots, and I’ll wack your ass good. Such folks work for a living and are therefore icky.

        All the best.

        RGK

        Reply
    2. Guitardave

      RGK, So you’re saying my 39yr old Sears biker jacket that my Ma and Pa bought me for Christmas the same year i built my first Harley chopper (1944 UL Flathead with a 9″ over Durfee girder)…and i still use, ain’t good enough? …like i gotta go buy some wuss-ass Saint-somethin what-evea jacket to score points?!?!…..well I NEVER!!!
      PS; and Scott, do NOT ask me “is that a real leather jacket, or a Sears leather jacket?”..so help me god….

      Reply
      1. John Barleycorn

        Not to Rumor and Sigh and hats off to you Cthulhu for this oddly reverent suggestion….

        May the resident back pages SJ guitar… hopeful find Greg Brown via this Richard Thompson classic which I am sure the sentenced “offender?” in question was never fortunate enough to have experienced in an eastern European café let alone windowless bar.

        Reply
  5. albeed

    There is only one way to properly evaluate the adequacy of the severity of sentence in this chamber of horrors that is the current non-investigation (teh-heh) of the current POTUS since the day he was born. I would like to call this the “pooped their pants” ptp response by various serious followers of the drama.

    For example, if one William Otis has dirty underwear, that is not indicative of anything as anything less than death plus cancer would elicit a similar reaction for jaywalking. So too if Rachel Maddow has dirty underwear, for anything less than a life sentence in this case would lead to a similar php (pooped her pants) response, which provides no guidance whatsoever either.

    However, the sentence may be considered about right if 50% of New Yorkers ptp, but we are really certain that the sentence is fair if one Robert S. Mueller has dirty underwear.

    Reply
  6. RedditLaw

    It’s nice to hear that you would have issued a death sentence, Mr. Greenfield. One hundred twenty months, indeed.

    I wonder, however, if Judge Ellis’ intent was to see if he could forestall a pardon from the White House. Had he handed down a sentence of one hundred twenty months or any other life plus cancer style sentence, Mr. Manafort would undoubtedly be a free man no later than December, 2020. However, a four year sentence will be served in in a little over three years with credit for time served. That’s 2022. The President might decide that Manafort could sit a shorter sentence out, especially if he was playing a double game with the special counsel and said anything negative about the President.

    Also, the longer the sentence, the more likely supporters of the President would view the entire legal proceeding as a sham, thereby resulting in a no-brainer in terms of the President issuing a pardon to please his base immediately after the 2020 election. A shorter sentence could result in a Scooter Libby-style commutation instead because the process will have appeared more fair to the supporters of the President.

    Reply
    1. RedditLaw

      This is a special long-distance dedication to Paul and Stoney, wherever they are. Richard Nixon is looking down on both of you and smiling.

      Reply
  7. Jake

    “But for his connection to Trump, nobody would have cared what sentence Senior EDVA Judge T.S. Ellis imposed on Paul Manafort.“

    Cite? To the contrary, to the best of our knowledge neither Persky nor Brock have any connection to Trump but look how that turned out.

    Also: There is nothing intellectually dishonest about supporting an end to incarceration policies that disproportionately impact the poor and supporting harsher sentences for wealthy, white rapists and treason weasels.

    Reply
    1. SHG Post author

      One in a million is a great argument for probability, Jake, particularly given the political climate surrounding Brock Turner’s crime. Way to stay on brand.

      Reply
        1. SHG Post author

          We’re like bookends, brother Jake. What would my slavish adherence to facts, logic and law mean without you for contrast?

          Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

All comments are subject to editing or deletion if I deem them inappropriate for any reason or no reason. Hyperlinks are not permitted in comments and will be deleted. References to Nazis/Hitler will not be tolerated. I allow anonymous comments, but will not tolerate attacks unless you use your real name. Anyone using the phrase "ad hominem" incorrectly will be ridiculed. If you use ALL CAPS for emphasis, I will assume you wear a tin foil hat and treat you accordingly. I expect civility from you, but that does not mean I will respond in kind. This is my home and I make the rules. If you don't like my rules, then don't comment. Spam is absolutely prohibited, and you will be permanently banned.