Change the names from Ellis to Persky, Manafort to Turner, and this opening paragraph sounds remarkably familiar.
The 47-month sentence imposed on former Trump campaign chairman Paul Manafort has drawn widespread criticism that Judge T.S. Ellis’s decision to give Manafort a sentence far below the 19.5 to 24.5-year guidelines range was motivated by Manafort’s race and class or by partisan bias. In fact, his flawed decision is a consequence of the vast discretion given to federal judges to issue sentences without real fear of being overturned.
There are three general reactions to the sentence, that it was too harsh, too lenient and about right. Then there was a more detached reaction, that regardless of how it fit Manafort, the best takeaway was that all defendants should be shown less harshness, that sentences have inflated to the point that ridiculously and pointlessly long sentences had become accepted as necessary and appropriate. Any sense of leniency here reflected what sentences should be for every defendant, and mandatory minimums and Draconian guidelines were constraints that undermined the authority of judges to fashion proper, individualized sentences.
Decades of being told that crime was out of control and the only way to prevent it was to be increasingly harsh had taken its toll. Not only did we have mass incarceration as a result, with its spiraling direct and collateral consequences, but mountains of empirical evidence to show that whatever was the right way to address punishment, we went far beyond it for no good reason.
And for that brief and shining moment, people began considering reforming our excesses.
Then came Manafort. Ironically, it only takes one high profile case, one hated defendant, to turn the herd of calm, detached, rational thinkers around.
Renato Mariotti is a former federal prosecutor and host of the “On Topic” podcast.
There’s some magic to the words “former federal prosecutor,” even though there are tons of them out there, most of whom are inconsequential. But it’s like a title, and media adores titles as they ascribe credibility, facilitating the burden of informing the reader or viewer that the talking head is someone who matters, rather than some random lawyer plucked from the courthouse hallway merely because he’s tried a few hundred felonies to verdict.
But in fairness, Renato Mariotti has gained cred on his own, having almost 200,000 twitter followers, most of whom appreciate his antagonism toward Trump and progressive takes. He’s knowledgeable about law and one of the folks who try to keep the choir grounded to legal reality. Much as he’s a trusted partisan, he’s still a real lawyer.
This is why his argument is so concerning.
Despite its serious flaws, the current system is superior to the mandatory guidelines approach. The guidelines are a complicated mechanical formula that takes into account some but not all factors that a judge should consider when sentencing. No mechanical formula can capture everything about a person or a crime. That’s why we have humans with years of legal experience perform this important function—not machines.
That said, more should be done to reduce the unfairness caused by the unbounded discretion afforded to federal judges.
The gap between the stance of Mariotti and, say, the delightful Bill Otis, is huge enough to squeeze a moderately thick strand of hair through. Where Bill would argue that this proves how we need mandatory guidelines to constrain these commie pinko judges, Renato equivocates to the extent that Booker is still superior to Mistretta, but something must be done.
Why? An outcome with which he disagreed happened? People disagree with sentences all the time. And people agree with sentences all the time. Why does Mariotti’s disapproval, progressive disapproval, matter so much that something must be done?
In my experience, judges relate to defendants like Manafort, who look like them and often come from the same privileged background many of them do, which can result in lower sentences for white-collar defendants. Of course, there are other important factors that create sentencing disparities. For example, mandatory minimum sentences force judges to give harsh sentences for narcotics crimes even if they otherwise believe a lesser sentence is warranted. Most white-collar crimes do not have mandatory minimum sentences.
This is the in-group/out-group trope, where defendants who “look like them,” a phrase that’s become popular mostly as a condemnation of J.K. Rowlings for not making Harry Potter a Nepalese transgender unidextor, somehow warms a cold judge’s heart to white-skinned male criminals. It’s often raised in the argument that the bullet emitting from the barrel of an unwhite, unmale cop’s gun stings less as it lodges in somebody’s head.
So something must be done, because someone he doesn’t like enjoyed the in-group benefit of a judge’s unbounded discretion? But what? What solution can a very progressive former federal prosecutor offer to cure this heinous injustice of someone he hates being treated with less than the requisite harshness of the team of tolerance?
While some level of sentencing disparities are an inevitable result of judicial discretion, poorly reasoned sentences—and outright unreasonable sentences like the one given to Manafort by Judge Ellis—are the result of a system where judges are given unfettered discretion and their sentencing decisions are not reviewed as carefully as they should be. If federal courts of appeal will not more carefully scrutinize sentences, then perhaps Congress should pass a law requiring that they do so.
Putting aside Renato’s begging the question of this sentence being “outright unreasonable” for its failure to comport with his woke sensibility of evil wealth white male Trump guy not being sentenced to life plus cancer, the obvious social justice answer is to call for a law to mandate that appellate courts carefully scrutinize sentences of people Renato hates to assure they meet the degree of progressive harshness?
Somewhere, Bill Otis is smiling.