U.S. District Judge Amy Berman Jackson is set to sentence Paul Manafort on Wednesday in federal court in Washington. Look for her to play it by the book ― which is precisely the opposite of what U.S. District Judge T.S. Ellis III did last week when he sentenced Manafort for a separate series of crimes.
Ellis’s decision to sentence President Trump’s former campaign chairman to 47 months in prison ― in a case in which the U.S. sentencing guidelines prescribed a range of 19 to 24 years ― has been roundly criticized both by prosecutors and defense lawyers. It has been cited in particular to highlight perceived systemic disparities between white-collar and violent-crime defendants in the federal system.
Those disparities are real, but they cannot begin to account for the caprice and the disdain for core sentencing law and policy that Ellis’s sentence reflected.
The range that Ellis concluded was excessive reflected a consensus judgment by the federal sentencing commission to calculate sentences in such financial fraud cases based on the amount of money the victims lost; in Manafort’s case, the figure exceeded $10 million.
Many judges, not just Ellis, chafe at the results of that judgment in cases dealing with large financial losses, which is why observers anticipated some downward departure from the guidelines here.
Having unmoored himself from the guidelines’ strictures, however, Ellis went into a free-form plunge, not stopping until he had cut the prescribed sentence by a full 80 percent. In the process, he ignored important social policies that underpin our sentencing system.
Even a plainly guilty defendant, as Manafort surely was, still has three ways to serve society so as to properly lower his fair sentence.
First, he can display contrition. That matters as a gauge of a defendant’s own moral worth and prospects for returning to the law-abiding community. There is also a broader value for society as a whole to see the offender contrite and brought low; it reaffirms the authority of law and the social demand to play by the rules.
Second, he can plead guilty, surrendering his constitutional right to trial and thereby saving the system immense resources. The sentences of defendants who go to trial are and should be far higher than those who plead.
Third, a guilty defendant is often in a position to help bring confederates to justice by cooperating with the prosecution. It’s a painful position — no one likes to be a “rat,” to use a word Trump seems to favor. But again it’s one of the few ways a guilty defendant can serve the greater good, and the reward for that can take the form of a dramatically reduced sentence.
Manafort had the chance to serve each of these policies. Not only did he not; he affronted them, perhaps in a bid to preserve his prospects for a presidential pardon. His words to the court included no expression of remorse. He put the United States and the system through a hugely resource-intensive trial. And most outrageously, he feigned cooperation with prosecutors, only to double cross them. He provided no valuable information, and he lied along the way. This roguish behavior merited the most severe systemic rebuke.
All of this antisocial behavior looks even worse when considered against the overwhelming importance of the Mueller probe. Special counsel Robert S. Mueller III’s overall investigative mission of getting at the truth of Russian interference with the 2016 election is of paramount importance. Uncovering the full facts is, in some ways, more important than bringing wrongdoers to justice. That imperative is in greater doubt as a result of Manafort’s perfidy.
Ellis’s inordinate tenderness toward Manafort represented fundamentally an act of arrogance and a disservice to sentencing policies. He kicked to the curb not just the bottom-line guidelines’ judgment but also a series of important systemic values that a just sentencing policy should serve.
So, given all that, should Jackson move to correct Ellis’s mistake? In a word, no. it would be improper of Jackson to import extraneous considerations into her calculus — such as Manafort’s sentence in a different case — just as it was wrong for Ellis to ignore critical considerations in his.
The damage is done, and Jackson cannot, and should not, try to reverse it. But she can, and likely will, affirm proper sentencing policy. Look for her to impose a conventional sentence within the bounds of her lawful discretion, perhaps seven or eight years, and to make it run consecutive to Ellis’s 47 months. That’s neither harsh nor lenient — but straight.