Paul Manafort, the former campaign manager for President Donald Trump, entered Virginia federal court on Thursday facing a recommended sentence of 19 to 24 years, and left with a sentence of less than four years. Many people are outraged by what they see as an unreasonably lenient penalty for an unrepentant crook, and have accused United States District Judge T. S. Ellis of bias. Others have decried the sentence as an example of America offering two tiers of justice: one for the rich (and more often white) and one for the poor (and more often not white).
Criticizing American criminal justice is fitting and proper. But there are two kinds of critiques—simplistic ones, which let the larger system off the hook, and complicated ones, which point out that many factors combined to get Manafort the dramatic break he enjoyed. Any criticism of Ellis as an individual is woefully inadequate. The American criminal-justice system works at every stage and every level to give chances to people like Manafort and deny them to poorer people.
First, there can’t be a sentence without an investigation. After 9/11, the United States Department of Justice and the U.S. Attorney’s Offices that it controls shifted resources and focus from white-collar crime to drugs, guns, and immigration. In Los Angeles, the U.S. Attorney’s Office shuttered the Public Corruption and Government Fraud Section, where I served. Investigations of people like Manafort—people who have committed complex financial crimes—are time-consuming and resource-intensive. You can jail 20 drug traffickers for life with the resources it took to prosecute Manafort. America picks who goes to jail when it picks whom to investigate—which is one of the reasons so few people involved in the 2008 Wall Street debacle went to jail.
Second, prosecutors have enormous power over who goes to jail and for how long. That power doesn’t just involve deciding who gets indicted. It involves deciding how he gets indicted. Manafort faced a recommended sentencing range of 19 to 24 years under U.S. sentencing guidelines. But that range was driven only in part by what he actually did. It was driven just as much by how the special counsel’s office chose to pursue the case—what charges it brought, what evidence it presented to Ellis, and what part of Manafort’s history it cited as “relevant conduct” at sentencing. Federal prosecutors can substantially shape a sentence by the plea deal they offer, choosing which parts of the sentencing guidelines apply. Prosecutors are more inclined to wield that power to benefit people like Manafort, not people charged with crimes involving drugs, blue-collar property crimes, and violence.
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Third, Congress has given Ellis the power to give people like Manafort a break, but has denied him that power when the defendant is accused of many blue-collar crimes. Last year, Ellis sentenced a 37-year-old man named Frederick Turner to 40 years in federal prison for methamphetamine distribution. He had no choice: Congress passed laws making 40 years the mandatory minimum sentence.
More than half of federal prisoners received a mandatory minimum sentence. Congress has passed mandatory minimum laws for drugs, guns, child abuse, and child porn. President Trump pushed for harsher mandatory minimum laws for immigration cases. These laws reflect America’s judgment about which people are so irredeemable that federal judges should not have the discretion to show them the sort of lenience Ellis showed Manafort. That judgment favors the rich at the expense of the poor.
Fourth, the U.S. sentencing guidelines treat some crimes more harshly than others, and though, unlike mandatory minimums, they are only recommendations, not strictures, they strongly influence judges. USA Today reported that fraud cases in Ellis’s district yielded an average sentence of 36 months, versus 66 months for firearms charges and 84 months for drug charges, all higher than the national average. Ellis announced that he was sentencing Manafort below the recommended guideline range because that range was far above what defendants received in similar cases. That is, in fact, a factor that he’s required by law to consider. Manafort’s case was arguably much more serious than others, but there’s no question that his sentencing range was atypically high for a white-collar defendant. This is how the system’s discrepancies become self-justifying and self-perpetuating: Judges give white-collar criminals lower sentences because white-collar criminals typically get lower sentences.
Fifth, money drives cases. Manafort’s criminal defense cost more than most defendants make in a lifetime. Money can’t buy freedom—Manafort’s money couldn’t save him from multiple convictions, because the federal government’s power is overwhelming even to a multimillionaire. But money buys a capable defense with the resources it needs. An extremely experienced, qualified defense team with plenty of time makes a profound difference at every stage of a case. Even when rich people get convicted, money helps get them the best plea deals, the most persuasive sentencing presentations, and often the most lenient sentences.
Sixth, and finally, judges are human. Racism and bias of every sort play a role in the system, but it’s too simplistic to say the problem is that particular judges are racist. The problem is that judges give breaks to people with whom they can identify—people whose humanity they recognize. We’re wired to identify with people like us. Judges—particularly federal judges—tend to come from backgrounds closer to Manafort’s than to the average drug dealer’s. Even when judges are born and raised in poverty, the process of becoming a lawyer, having a career, and becoming a judge makes them inexorably more like Manafort. The system has a homogenizing effect. As a result, the people who tend to get breaks are often people who have led privileged lives, like judges have—take the infamous Brock Turner case, for example.
The system isn’t broken because Manafort got four years rather than the 19-year recommendation that the sentencing guidelines spat out. The system is broken because other people get the long sentence—because other poorer and often darker people don’t get the same chances. It’s broken at every level, in obvious and obscure ways. Blaming the injustice on a single judge, like Ellis, is an oversimplified evasion of the problem.