Why The Fairness or Unfairness Of Manafort Sentence Isn’t All That Clear Cut

Should it be measured against fraudsters who took a plea deal, or only those who were also convicted after a trial?

Paul Manafort acting in his capacity of Trump Campaign Chair back in 2016

Day after tomorrow, former Trump campaign chief Paul Manafort faces a second round of sentencing. This time the upper limit of the penalty is 10-years, and Judge Amy Berman Jackson could order he serve it concurrently with last week’s sentence (meaning it wouldn’t add any additional actual time in prison), or consecutively (meaning it would: he’d have to serve the second sentence immediately following the first). Which obviously will make a huge difference.

When Judge T.S. Ellis late Friday sentenced Manafort to 47-months in prison, he said he looked at sentences in comparable cases. And that’s one of the reasons he decided on a term far shy of federal sentencing guidelines.

The more headline-grabbing reason, which took most of the focus, was Ellis’ contention that Manafort has led an “otherwise blameless life”, while as Renato Mariotti in Politico Magazine points out:

For many years, he committed just about every white-collar crime imaginable.

We’re going in another direction today, because we immediately wondered if the judge meant he considered all similar multi-million dollar bank and tax fraud sentences, or only those resulting from cases that went to trial?

Why is this important? Because in a majority of federal cases, defendants don’t go to trial. Instead they work out a plea agreement which as part of it, often includes a recommendation for a lighter prison term.

When defendants don’t strike a deal, do take their cases to trial, and are found guilty by a jury (as Manafort was), judges are more likely to throw the book at them than go easy.

So that’s why so many legal scholars seemed so surprised by the sentence: not because anyone thought Manafort would get anywhere near the 19 1/2-24 1/2 year official recommendation (which almost everybody seems to agree with the judge is “out of whack”), but that he wouldn’t get off just as easy as if he had taken a plea either.

In fact, there are plenty of critics of sentencing guidelines who say they are deliberately set onerously high to deter people from going to trial, even if they think they have a case. And they’re not entirely wrong. Someone shouldn’t be severely penalized just because they had the gall to take their case to trial.

However, while that may not seem fair, it is a reality of the current system, and it would apply to just about anybody. Just about

And at the same time, one might argue (and we very much are) that someone who went to trial and was convicted, is probably getting off easy if they are sentenced equivalently to someone who did cooperate, and did plead guilty, and at the very least saved taxpayers the expense of an extended investigation and trial. Yes, in the end, the conviction may be for the same crime, so maybe the penalty should be the same. But this judge was admittedly taking unusual circumstances surrounding the trial into consideration, so why not consider that?

And we don’t really know what cases he reviewed in making his decision on Manafort’s sentence. However, we do know what cases Manafort’s lawyers suggested he look at. In the sentencing memorandum they presented to Judge Ellis, they cite more than a dozen white collar cases in which the individuals convicted did similar things as Manafort. And many of them got very minor penalties; some even no prison time. Manafort’s lawyers mostly don’t specify whether the convictions in those cases came as the result of a plea or a jury trial, so we did a little digging on our own and found nearly all of them (close to 85%) came after a plea agreement, not a jury trial. Here are a sample of a few named in the document:

  • Igor Olenicoff, pleaded guilty to tax fraud, no prison; 120 hours community service. Paid millions in fines but still managed to stay on Forbes 400 list.
  • Jules Robbins, pleaded guilty to tax fraud, no prison; fines wiped out nearly 80% of his net worth.
  • Josephine Bhasin, pleaded guilty to tax fraud, no prison.

The list goes on…almost none of the examples presented involved a jury trial.

The Washington Post did some comparisons of its own and concludes Manafort’s sentence is in line with or even a little stricter than a lot of similar convictions. But points out:

The vast majority of cases ended with defendants pleading guilty.”

According to the Dallas Morning News, about 90% of all federal cases are settled without a trial.

Why is that? Money, mostly. The expense of going up against the federal government is astronomical, and they have the top-of-the-line investigative unit in the F.B.I. Most people just don’t have the deep pockets necessary to challenge that. Also, the evidence in these cases is often super-airtight because of the incredible resources at the government’s disposal.

Actually, a slightly higher percentage of white collar cases go to trial than federal cases overall. That might be because white collar crime is often more complicated, less easy to lay out to a jury, and more difficult to piece together. And white collar criminals do tend to have somewhat deeper pockets. However, even in the case of white collar crime (the biggest of which by far is fraud), way more cases end in plea deals than go to trial.

Quick side note: white collar crime prosecutions are way down since Trump took office. In fact, according to Syracuse University, they are now at their lowest levels in 20 years.

Getting back to Manafort, wouldn’t a fairer yardstick be to measure his sentence against similar defendants convicted by a jury after a trial, vs. those convicted via a guilty plea? Just wondering…

One final note: one detail of this story has been consistently misrepresented in many stories we’ve seen (and even more on Twitter and in our Facebook feed). And that’s the fact that Judge Ellis fairly recently handed down a sentence of 40 years to a meth dealer, saying he had no choice. Implying that was a convenient excuse that didn’t stop him from bending the rules for Manafort. When actually, in the case of the meth dealer it was a mandatory minimum, and Judge Ellis was highly critical of the fact that he had no discretion as he handed it down. We’ve seen others suggesting racial bias in that case without bothering to check that the dealer, Frederick Turner, is white.

There’s a difference between federal sentencing guidelines and mandatory minimums. At one time the sentencing guidelines were mandatory, but thanks to a Supreme Court ruling, these days they’re advisory. Congress decides what crimes are heinous enough to require mandatory minimums. According to the Federal Court System, drug trafficking accounts for more than 2/3rds of the crimes these days carrying mandatory minimum sentences. Others include child pornography, crimes involving firearms, and sexual abuse. Trump’s been trying to add violations of immigration law onto that list (of course). Bank fraud isn’t on it.