Outside the Beltway

Paul Manafort’s Sentence, Justice, And The Question Of Race

The relatively light sentence that Paul Manafort received is raising eyebrows. Hopefully it will lead to a long-overdue debate on sentencing reform.

Doug Mataconis · Saturday, March 9, 2019 · 14 comments

The seemingly light sentence that Judge T.S. Ellis handed down in Paul Manafort’s Virginia criminal case has resulted in a reaction across the country:

WASHINGTON — Judge T.S. Ellis III offered some pointed advice for those who expected him to throw the book at President Trump’s former campaign chairman, Paul Manafort, for perpetrating a decade-long, multimillion-dollar fraud scheme.

“Go and spend a day in the jail or penitentiary of the federal government,” Judge Ellis said on Thursday night from the bench in the United States District Court in Alexandria, Va. “Spend a week there. He has to spend 47 months.”

Judge Ellis dismissed as “vindictive” and “way out of whack” sentencing guidelines that recommended a prison term of 19 to 24 years for Mr. Manafort, 69.

But to more than a few legal experts, it was Judge Ellis’s sentence that was out of whack. They cited it as a glaring example of the leniency that wealthy white-collar criminals often receive because they have the money to defend themselves or because judges find it easier to empathize with them.

“There are a lot of defendants who are going to prison for a lot longer for offenses that are far less serious,” said Duncan Levin, a former federal prosecutor who specialized in financial crimes. “This sentence is leaving me and a lot of people who do this every day scratching our heads.”

By some calculations, with credit for the nine months he has already spent in jail, plus a break included in a sentencing law just approved by Congress, Mr. Manafort could serve out Judge Ellis’s sentence in just 22 months.

The judge had predicted some pushback, but he may not have expected how his decision reverberated around the nation, provoking a social media firestorm that swept up public defenders, prosecutors and ordinary citizens. William N. Nettles, a former United States attorney in South Carolina, called Judge Ellis’s decision “sentencing disparity on steroids.”

“How in the world can we make sense of the sentences that we have been handing down to the poor and to those people of color who didn’t have nearly the opportunities that Paul Manafort had to make an honest living?” asked Mr. Nettles, who was an Obama administration appointee.

Scott Hechinger, a public defender in Brooklyn and a pithy presence on criminal justice on Twitter, made a similar point. “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,” he wrote.

Many legal experts criticize sentencing guidelines as unduly punitive. But in four out of five criminal cases, sentences fall within or above the guideline range, unless the government specifically requests a lighter punishment. In Mr. Manafort’s case, prosecutors recommended no specific punishment, but said the range of 19 to 24 years had been rightly calculated.

Rachel E. Barkow, a former member of the United States Sentencing Commission, said she had expected Mr. Manafort’s punishment to fall below the guidelines. In fraud cases, the recommended penalty can skyrocket depending on the amount of money involved, she said, leading many judges to opt for a lighter sentence.

But Judge Ellis cut the punishment far more drastically than she expected, said Ms. Barkow, a law professor at New York University.

Judge Ellis said the guidelines for Mr. Manafort’s crimes were distorted by a 2017 decision by the Justice Department that increased the recommended punishment for failing to disclose a foreign bank account, which was one of eight counts Mr. Manafort was convicted of after a lengthy jury trial in his courtroom. He also noted that he had sentenced another defendant who had hidden $200 million in overseas accounts and evaded $18 million in taxes to only seven months in prison, plus restitution.

Greg D. Andres, the lead prosecutor on the case, argued that Mr. Manafort was different because the jury had found him guilty not only of hiding his wealth and evading $6 million in taxes, but also of deceiving banks to obtain millions of dollars in loans. The two bank fraud counts were the most serious charges he was convicted of, each carrying a maximum penalty of 30 years in prison.

Mr. Andres also urged Judge Ellis to take the broader picture of Mr. Manafort’s behavior into account, including the crimes he admitted to as part of his plea agreement in a related case in Washington. Mr. Manafort acknowledged he was guilty of 10 other felonies on which the Virginia jury had deadlocked 11 to 1, including several more counts of bank fraud.

But Judge Ellis seemed to see Mr. Manafort’s case as more strictly about tax evasion. He noted that one fraudulent loan application was never actually approved, and questioned whether Mr. Manafort had in fact intended to cause that bank a loss when he lied to get another loan. “I don’t know that there’s any other way to defraud a bank and not intend it to lose the money,” Mr. Andres replied.

Carl Tobias, a professor at the University of Richmond School of Law, said Judge Ellis’s sentence seemed strangely light, especially given that the judge denied every objection raised by Mr. Manafort’s lawyers to the sentencing guidelines. “He refuted all of the arguments of the defense, yet ultimately ruled very much in favor of their client,” Mr. Tobias said.

He was also struck, he said, by the judge’s praise of Mr. Manafort’s character. “He’s lived an otherwise blameless life,” Judge Ellis said of a man who acknowledged orchestrating a sophisticated financial fraud scheme that lasted a decade. “And he’s also earned the admiration of a number of people.”

Contrary to these perceptions, The Washington Post notes that Manafort’s sentence appears to be consistent with sentences handed down in similar cases in Federal Court from around the country:

Paul Manafort’s prison sentence of less than four years on bank- and tax-fraud charges Thursday sparked outrage from commentators who said it was too light a punishment for his crimes.

But a review of data for all 452 similar cases nationwide in fiscal 2018 show President Trump’s former campaign chairman received a sentence that was somewhat stiffer than other federal defendants’ prison terms.

The average prison sentence in such bank-fraud cases was about 31 months, roughly 16 months shorter than the 47 months Manafort received for convictions in federal court in Northern Virginia, according to an analysis of court data maintained by Syracuse University’s Transactional Records Access Clearinghouse (TRAC).

But Manafort, who was convicted by a jury in August 2018, fared much better when compared with other defendants who were also convicted by federal juries.

The average sentence for those trials, 22 in all, was 98 months, according to the analysis.

Exact comparisons are impossible, as no two cases are exactly alike. The TRAC database allows users only to compare cases with the same lead charge — the count a prosecutor deems the most important. But each defendant may also have been convicted of other charges that could affect the length of the sentence imposed.

[Paul Manafort sentenced to about 4 years in prison in Virginia case]

The review found a wide disparity between federal sentences in cases like Manafort’s, with some defendants receiving no prison time and others receiving sentences several times longer than Manafort’s. The vast majority of cases ended with defendants pleading guilty.

U.S. District Judge T.S. Ellis III in the Eastern District of Virginia surprised many when he sharply departed from federal sentencing guidelines, which called for Manafort to be given from 19 to 24 years in prison for eight counts of bank and tax fraud, as well as failing to report a foreign bank account.

(…)

Ellis called the guidelines in Manafort’s case “excessive” and noted that judges in a “substantial majority” of such cases over the past decade had recommended sentences below the guidelines, before meting out Manafort’s sentence. He imposed a 47-month sentence for bank fraud, with lower terms on the other counts, all to run concurrently.

Ellis noted that Manafort had no prior criminal record. The judge also appeared to find persuasive cases cited by Manafort’s attorneys in which major tax evaders got little or no prison time.

Matthew Hicks, who represented three of those defendants, said that “all involved substantial cooperation.”

Andrew Silva, a Virginia doctor who was given probation for smuggling $211,000 from a Swiss bank account into the United States, began cooperating not long after a search warrant was issued. Hicks said at sentencing that Silva accepted responsibility “faster than any criminal defendant I have ever been associated with or known.” Hyung Kwon Kim, a South Korean immigrant who hid $28 million in foreign bank accounts and got a six-month sentence, cooperated for five years before he was formally charged.

But many tax cheats have received probationary sentences. The Justice Department in late 2017 pushed back by changing the way it calculates sentencing guidelines, now also looking at the total amount of money stored overseas rather than the amount of unpaid taxes.

Matthew Hicks, who represented three of those defendants, said that “all involved substantial cooperation.”

Andrew Silva, a Virginia doctor who was given probation for smuggling $211,000 from a Swiss bank account into the United States, began cooperating not long after a search warrant was issued. Hicks said at sentencing that Silva accepted responsibility “faster than any criminal defendant I have ever been associated with or known.” Hyung Kwon Kim, a South Korean immigrant who hid $28 million in foreign bank accounts and got a six-month sentence, cooperated for five years before he was formally charged.

But many tax cheats have received probationary sentences. The Justice Department in late 2017 pushed back by changing the way it calculates sentencing guidelines, now also looking at the total amount of money stored overseas rather than the amount of unpaid taxes.

While I did not expect Manafort to get anywhere near the 20-year minimum sentence called for under the guidelines, in part due to the fact that he did not have a criminal record prior to the charges brought against him by the Special Counsel’s office, the extent to which the sentence deviated from those guidelines was something of a surprise. The difference between the 19 year minimum that the guidelines called for and the 47 months that Manafort received was striking even when you factor into the equation that Judge Ellis, who has been on the bench for more than 30 years has a reputation for deviating from the guidelines in cases involving non-violent first-time offenders, and especially in cases involving white-collar crimes, This becomes even more true when you add in the fact that Manafort had taken the case to trial, which is his right but which is typically counted against a defendant under the guidelines, that he had continued committing crimes even after being charged in the District of Columbia and Virginia, and that he had blatantly violated the terms of the plea agreement he entered into with the Federal Government, including lying to Federal officials which, of course, a crime all its own. Adding all of this is the fact that Manafort has never expressed remorse for his actions and, during his brief testimony before Judge Ellis on Thursday afternoon, essentially put forward a “woe is me” defense rather than admit he had ever done anything wrong. Adding all this together, one is left with an unrepentant convicted felon who does not seem entitled to the mercy that Judge Ellis unquestionably gave a huge break. Under these circumstances, it’s easy to see why Manafort’s sentence became a point of controversy.

Another issue hanging over the sentencing, inevitably, is the question of race and the largely correct observation by many commentators on the news channels and on social media yesterday that the leniency that Judge Ellis showed toward Manafort contrasts sharply with the example of mostly poor, minority Defendants face when being sentenced even on non-violent crimes. Some have picked up on this as evidence of racial bias on Judge Ellis’s part, however as I said on social media yesterday based on my 20-odd years of practicing law in Virginia, which included appearances before Judge Ellis, although not on a regular basis, I have seen no inkling or heard any rumors on his part and I would require some objective evidence of this before even coming close to that conclusion. This is especially true given the fact that as a general rule the types of crimes that poor and minority defendants are charged with are those that have far more severe sentences and cases, such as drug-related crimes or crimes where a gun is used even if it isn’t fired, where Judges have far less discretion than they do in white-collar cases. Obviously, this brings to mind issues all their own that are motivating the ongoing calls from sentencing reform that are coming from both sides of the political aisle, including politicians as diverse as Senators Cory Booker and Rand Paul as well as groups such as the ACLU on the left and FreedomWorks on the right. Congress addressed some of these issues in the recently passed First Step Act, which President Trump signed into law late last year, but much work needs to be done in this area, Perhaps the Manafort sentence will serve to push that debate forward. If it does, then Judge Ellis’s relative leniency may end up being a good thing after all.