President Donald Trump’s former campaign chairman, Paul Manafort, was sentenced to just shy of four years in prison on Thursday.
US District Judge T.S. Ellis in Alexandria, Virginia handed down the sentence, and he called the 19-to-24-year prison sentence prosecutors recommended “excessive.” A jury found Manafort guilty on eight counts of bank and tax fraud; the jury was deadlocked on 10 other counts, leading to a mistrial.
Reactions to Manafort’s sentence came swiftly on Thursday night, with many observers saying it’s too lenient.
More than a few Twitter users pointed out that Manafort’s sentence in the Virginia case was far less than that of others who were convicted of offenses like low-level drug crimes.
Is this sentence surprising?
“Although this is unusual, it is not unheard of,” said, Kenneth White, a former federal prosecutor and current First Amendment litigator and criminal defense attorney in Los Angeles. White also runs the popular @PopeHat account on Twitter, and hosts the “Make No Law: The First Amendment Podcast.”
“So it’s more like a 10%-er rather than a 1%-er, in terms of judges departing from the guidelines, and people are very quick to jump to conclusions that aren’t necessarily warranted.”
White cautioned against looking for the simplistic view — claiming the judge must be biased — but rather to look at the systemic reasons why this judge could hand out a lenient sentence.
“I don’t necessarily think that it is outrageous to only put him in jail for four years, I think it’s outrageous in comparison to other things,” he said.
So why can this happen?
Judge Ellis was able to give Manafort a sentence below the guidelines because of our current sentencing laws.
Two issues playing into this are the US Supreme Court’s 2005 decision in United States v. Booker, which gave federal judges more discretion on sentencing, and federal mandatory minimums.
Congress sets mandatory minimums for federal crimes — including drug, gun, some economic, and some pornography crimes, according to Families Against Mandatory Minimums.
On Twitter, White pointed to a case where Ellis complained about having to give a mandatory minimum sentence of 40 years to a defendant convicted of dealing methamphetamine.
“This situation presents me with something I have no discretion to change and the only thing I can do is express my displeasure,” Ellis told the court last year. “I chafe a bit at that, but I follow the law. If I thought it was blatantly immoral, I’d have to resign. It’s wrong, but not immoral.”
Ellis also said that you’d have to go to Congress to fix the sentencing requirements.
As White explained it, the system works so that Judge Ellis could sentence Manafort this way because the laws governing white collar crimes give him the discretion to do it. However, the law “tends to restrain judges from showing that sort of leniency to people who are more likely to be poor, more likely not to be white, and who commit drug crimes, property crimes, on a smaller scale violent crimes — that type of thing.”
The US justice system introduces sentencing disparities in two key ways
“The system is set up in two ways to give much harsher sentences for more blue collar property crimes and for drug and violent crimes,” White said. “One way is the laws give mandatory sentences that are much harsher for those types of crimes. It doesn’t tend to give mandatory sentences for what Manafort did.”
The second way, White argues is that “on average, judges tend to identify more and be more lenient to people who are more like them. And people like Manafort are more like them than the drug dealers and the guy who stole the lawn mowers and the guy with the gun,” White said.
While it didn’t look specifically at sentencing disparities between white collar crime compared to drug, gun, or other crime, a study done by the United States Sentencing Commission and published in 2017 did find racial disparities in sentencing.
“Judges are less likely to voluntarily revise sentences downward for black offenders than for white ones, in other words,” The Washington Post explained in 2017. “And even when judges do reduce black offenders’ sentences, they do so by smaller amounts than for white offenders.”
It goes beyond judges
There’s an additional wrench in the system: the prosecution of white collar crime.
“The truth is in the last roughly 20 years, there’s been a big downturn in white collar prosecutions,” White said. “After the terror attacks of September 11, 2001, there was a significant shift of assets to violent crime, to drugs, to immigration, to things like that and the reduction in the number of prosecutions of white collar cases — especially sophisticated, complicated white collar cases, which are very time and personnel intensive.”
At Vox, Matt Yglesias explained why people like Manafort and Michael Cohen, President Donald Trump’s former lawyer and fixer who is going to prison for three years on charges of campaign finance violations and tax fraud, were nearly able to get away with white collar crimes.
Like White, Yglesias points to the fact that after September 11, 2001, “terrorism ended up soaking up both concrete resources and prestige away from other missions that the FBI and federal prosecutors could pursue,” he also explains that these types of crimes are very intensive to prosecute.
What’s the fix?
In terms of fixing the sentencing disparities, White doesn’t think that giving someone like Manafort more time is the answer. Rather, he said the penal system needs to be fixed across the board.
“I think we rethink all mandatory minimums,” he said. “We seriously rethink all the lengths of sentences for different crimes even under the guidelines. We rethink in general the trend towards criminalizing as much as possible.”
At the end of 2018, Congress passed a bipartisan criminal justice reform bill that was signed by Trump. The First Step Act begins the process of relaxing some mandatory minimums on drug crimes and for nonviolent drug crimes, it gives judges the ability to give below the mandatory prison time, The Post reports.
“You’re never going to pour more resources in, and make laws tougher and wind up with the Manaforts bearing the brunt of it,” White said. “It’s always going to be the other people bearing the brunt of it.”