Editor's note: This piece was updated on Wednesday, March 13, 2019 to reflect Paul Manafort's sentence in District of Columbia federal court.
Surprising many of us who spent our careers in the criminal justice system, Judge T.S. Ellis, a federal judge in the Eastern District of Virginia, last week sentenced Paul Manafort to a period of incarceration that was dramatically below the federal guidelines.
On Wednesday, Manafort was sentenced by District of Columbia federal court Judge Amy Berman Jackson in his second criminal case. Given Judge Ellis’ extraordinarily lenient sentence, many have been watching the proceedings closely. In a very real sense, Judge Jackson had the rare opportunity to clean up what some view as Ellis’ sentencing mess, remedying — even if only atmospherically — the damage to the criminal justice system done by the unjust and unjustifiable sentence imposed by Ellis. But after an extended tongue-lashing in court, Jackson sentenced Manafort to 43 additional months in prison, meaning Manafort will still spend less than 10 years in jail in total. With good behavior and time served, he could be out by the time he's 76.
Manafort has been something of one-man white-collar crime wave.
Manafort has been something of one-man white-collar crime wave. Mueller’s team prosecuted him in Virginia for charges including tax and bank fraud. He was convicted of eight felony charges, with the jury unable to reach unanimous verdicts on ten additional felony counts. Manafort later decided to plead guilty to charges of conspiracy to defraud the United States and conspiracy to obstruct justice by tampering with witnesses in his DC case. At the time of his plea, Manafort admitted that he committed the ten felonies on which the Virginia jury hung.
There is no obvious, fact-based explanation for why Judge Ellis seemed to virtually disregard the sentencing guidelines. Many understandably have decried the low sentence, arguing that it is a sign of a system that treats wealthy, white offenders differently than indigent minority offenders. Others contend that white-collar criminals are coddled by the system, receiving sentences completely out of proportion to the enormous harm caused by their financial misdeeds. Still others observe that Ellis sentenced Rep. William Jefferson, an African-American Congressman from Louisiana, to 13 years in prison for white collar and public corruption-type offenses. Each of these assertions have both merit and counterarguments that are beyond the scope of this article but are nonetheless important topics of debate.
The case of Representative Jefferson presents one of the most interesting intersections, or perhaps coincidences, presented by the Manafort saga. When Judge Ellis presided over the case, one of Jefferson’s defense attorneys was a lawyer named Amy Berman Jackson.
To be fair, calculating a defendant’s sentence range is a complicated process. Once a person is found guilty, the Federal Probation Office (an arm of the court, not the prosecutors) conducts a background investigation of the defendant to ascertain what factors in his life might either mitigate or aggravate the nature of his crimes. Second, a detailed examination of the Federal Sentencing Guidelines is undertaken to determine how similarly situated defendants would be sentenced. It should be noted that the United States Sentencing Commission, the body responsible for drafting the guidelines, is a bipartisan, independent agency created in 1984 to promote uniformity in the sentencing of criminal offenders. This painstaking sentencing calculation is undertaken in every federal case in the country to promote uniformity, and hence fairness, in federal sentencing.
There are two common reasons for a judge to “depart downward,” that is, go below the bottom of the established guideline range of, in Manafort’s case, 19.5 years. The first is if a defendant accepts responsibility for his crimes and expresses remorse. During Manafort’s sentencing hearing, Judge Ellis noted that Manafort had not taken responsibility for his crimes and showed little remorse. A second reason to go below the guideline range is if the defendant provided substantial assistance to the prosecutors in connection with crimes committed by others. Ellis concluded that Manafort did not provide substantial assistance to the Mueller team. This conclusion is unsurprising given that Manafort was found by Judge Jackson to have lied to the Mueller team after he agreed to cooperate truthfully.
By all indications, it looked like Ellis was about to hit a long-ball sentence. Thus the shocked reaction to the inexplicably lenient sentence of 47 months in prison, more than 15 years below the low end of the guideline range.
Manafort was facing up to 10 years in prison on his DC charges. Judge Jackson has chosen to run his sentence concurrent with the sentence imposed by Judge Ellis. There are also some important aggravating factors that may or may not have impacted Jackson’s sentencing decision. While free on bail, Manafort tampered with witnesses by encouraging them to lie about his illegal lobbying efforts in the United States on behalf of Ukraine.
Moreover, after pleading guilty and agreeing to cooperate truthfully with the Mueller probe, Manafort lied. Thereafter, Jackson spent considerable time litigating whether Manafort lied to federal investigators, thereby violating his plea agreement. Manafort’s lawyers contended he did not lie. Jackson rejected that position, concluding that he did.
As all prosecutors well know, there is little recourse when a judge imposes what seems to be an inappropriately light sentence. Adding insult to injury, just before imposing the extraordinarily lenient sentence, Judge Ellis stated that Manafort had led “an otherwise blameless life.” This comment seemed divorced from the reality of Manafort’s decade-long course of criminal conduct.
During sentencing hearings, judges frequently make comments and share observations regarding the nature of a defendant’s crimes, the pain inflicted on victims and the defendant’s disregard for the rule of law. Jackson's reputation is as a no-nonsense, law-and-order-oriented judge, and she certainly spoke harshly about Manfort's conduct before delivering her sentence. She may not share Judge Ellis’ views on Manafort leading a largely “blameless life,” but neither did she find him deserving of the maximum sentence.