Three years for Cohen is serious. But it's not even close to the average federal sentence.

"Is this representative of what happens to so many other people?" said a criminal justice reform advocate. "In many ways, no."
Image: Michael Cohen Sentencing
Michael Cohen, President Donald Trump's former lawyer, leaves federal court after his sentencing in New York on Dec. 12, 2018.Craig Ruttle / AP

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By Janell Ross

Commentators on special counsel Robert Mueller’s investigation often refer to possible prison sentences for targets as “lengthy,” “substantial,” and, of course, “avoided with a presidential pardon.”

The federal judge in New York who sentenced Michael Cohen, a onetime lawyer and fixer to President Donald Trump, to three years in prison for lying to Congress, campaign finance violations, bank fraud and tax evasion, said he was giving Cohen a “significant term of imprisonment.” That set off far more conversation about federal jail time and sentencing guidelines than typically happens on a Wednesday in mid-December.

The average prison term for all federal prisoners is 55.4 months, which is more than 50 percent longer than Cohen’s 36-month sentence. (That was for 2014, the latest year for which detailed figures are available from the Bureau of Justice Statistics.) But the disparities go deeper than that. The average sentence for drug offenses in the federal system is 77.6 months. The average sentence for black prisoners is 82.7 months; for white prisoners, it is 46.9 months.

By that standard, none of the men charged or convicted so far of crimes in the Mueller probe or its satellites face what can legitimately be described as a lengthy term. (Paul Manafort, Trump’s former campaign manager, who was convicted of financial fraud and faces a recently expanded list of charges including obstruction of justice and operating as an unregistered foreign agent, may be an exception when he is sentenced.)

Cohen, of course, wasn’t charged with violent crimes or drug law violations. But prosecutors in New York recommended a sentence of 43 to 63 months, indicating that Cohen had been helpful in his cooperation with Mueller’s team, but not that helpful. Prosecutors said Cohen also committed serious crimes which enriched himself. The judge who sentenced Cohen Wednesday echoed that and added a unique admonition. He said Cohen’s crimes “implicated a far more insidious harm to our democratic institutions.”

Even with all of that, some consider Cohen’s term substantial.

“You aren’t going to get me to say that three years isn’t a big deal,” said Kara Gotsch, who oversees federal advocacy at the Sentencing Project, a nonprofit that advocates criminal justice reform. “Families grow older, loved ones die, milestones happen and it is real punishment to be taken from the community. But is this representative of what happens to so many other people? In many ways, no.”

In court, and in letters submitted before Cohen’s Wednesday sentencing hearing, Cohen’s lawyers argued that his decision to fundraise for St. Jude Children’s Research Hospital, Operation Smile, a scholarship fund at his children's Manhattan private school and other good deeds within his social circle should mitigate his punishment. They argued for no jail time at all.

The judge’s response was that of a man who has heard it before from rich defendants.

“The letters submitted...reveal a man dedicated to his family and generous with his time and money to help people in his own orbit,” said U.S. District Judge William Pauley III. ”Of course that kind of generosity is laudable. But somewhere along the way Mr. Cohen appears to have lost his moral compass and sought instead to monetize his newfound influence.”

The federal prison system holds most of its prisoners hundreds of miles from home, making family visits expensive and rare. However, the prison where Cohen asked and the judge agreed to recommend that Cohen be jailed sits just 70 miles from the New York City area where his family lives. Cohen’s likely prison, Otisville, also ranks among what Forbes called the country’s 10 “cushiest” prisons.

Cohen appears to have fared better than those convicted of similar and completely different crimes.

Federal prisons, like state prisons, house a population that is disproportionately black, Latino and poor. The number of people spending time in them has shifted with the nation’s politics. In 1980, there were just 24,000 people in federal prison. But in 2016, that figure had reached 192,000 people. If current trends continue — meaning the criminal justice reform bill currently before Congress does not pass and additional reform does not follow — one of every three black men and one in every six Latino men will spend time in prison in their lifetimes, according to the American Bar Association. Right now, almost half — 49 percent — of all federal inmates are non-violent criminals serving time on drug charges.

“There are disparities at every stage of the criminal justice system,” Gotsch said. “In who is stopped, who is questioned, who is arrested, charged, convicted and sent to prison as well as how long the sentencing guidelines say they have to remain.”

Reforms proposed include early releases and narrow pathways around mandatory minimum sentences for current and future inmates including, potentially, Cohen.

Even in the absence of that, many feel Cohen is already operating on easy. On Twitter, the Rev. Jesse Jackson pointed out that many young people sit in county jails for years awaiting trial on marijuana charges and don’t get the “mercy and consideration” that left Cohen with a three-year bid in connection with far more serious chicanery.

Others put it more plainly:

One of the more ironic forces for criminal justice reform is a group of politically connected operatives, aides and former elected officials who have spent time incarcerated under the terms of the sentencing guidelines that they, in some cases, wrote.

“A lot of them, they are white men,” Gotsch said. “They are college-educated and have a fair amount of privilege and notoriety. They’ve come out profoundly changed by what they experienced during their incarceration. They have decided this is something they are going to work on.”

Among the primary White House supporters of criminal justice reform: Jared Kushner, son of Charles Kushner, a New Jersey real estate mogul who served 14 months in an Alabama federal prison after pleading guilty to illegal campaign contributions, tax evasion and witness tampering. The elder Kushner’s sentence was two years.