Every week mail stacks up at my desk from prisoners seeking help in addressing their sentences or petitioning for clemency. Their stories are not told (except by the students in my clinic at St. Thomas Law School for those few we can represent). Instead, when we read about sentencing it’s usually related to the rich and famous. One of those cases is in the news now, as former Trump campaign chairman Paul Manafort was sentenced twice in the course of one week. On March 7, Judge T.S. Ellis III of the Eastern District of Virginia sentenced him to 47 months imprisonment; then on March 13 Judge Amy Berman Jackson of the D.C. District Court added an additional 43 months for separate (but related) charges filed there. There is a lot to learn from the Manafort case, both about him and about the people who write to me from humbler positions.
In the Eastern District of Virginia case, the federal sentencing guidelines advised Judge Ellis that Manafort should be sentenced to 19-24 years. The judge, as is his right, rejected that advice and instead sentenced him to a bit less than four years with nine months credit for time served. As soon as Manafort’s first sentence was announced, many sentencing experts went kablooie. My former colleague at the U.S. Attorney’s Office in Detroit, Barbara McQuade, told the New York Times that the sentence was “atrociously low” and “absurd.” On these very pages last week, former judge Nancy Gertner (who taught me about the federal sentencing guidelines a few decades ago) reported that she was “taken aback” by the sentence. A prominent public defender, Scott Hechinger, compared the sentence with an offer made to one of his clients: 36-72 months for stealing $100 in quarters. The prosecutors working for special counsel Robert Mueller seemed disapproving, too, as they visibly reacted to the sentence.
Hechinger’s example drove home the problem for many observers: that white-collar criminals like Manafort get away with light sentences compared to other offenders. The key, though, is what we make of that disparity. The problem is not that Manafort’s sentence was too low; it’s that our sentences for many other crimes are far too high.
First, let’s dispense with the idea that Manafort’s first sentence was too low.
Think back to March 2016 when it seemed unlikely that Donald Trump would even become president of the United States. Think of all the things that have happened to you in that time. Children or grandchildren have grown, graduations occurred, people married and traveled. What would it mean to have those three years, those memories, gone? And then, when you returned to the rest of the world, nothing would be the same. You would struggle to get a job, be barred from much housing and not be able to vote. Others in your life would have moved on. You might have been forgotten and abandoned by those you loved. Three years is significant.
Even if President Trump were to pardon Manafort or commute his sentence so he could be released, his life would not be the same. His status as a notable person — something that seemed important to him — was revoked. He still would face the sentence he may well fear the most: irrelevance.
Sufficient, but not greater than necessary
Federal law (at 18 U.S.C. 3553) has a discrete and wonderful description of what a proper sentence should be: “The court shall impose a sentence sufficient, but not greater than necessary” to achieve the goals of sentencing (incapacitation, retribution, deterrence and rehabilitation). Considered in full, it seems that Manafort’s sentence may have been about right under that standard. It is enough to exact painful retribution, certainly, and might create deterrence among others who might consider a similar crime. No one wants to go to prison.
What of the others, though, the ones who write to me from obscurity? In narcotics cases, it takes very little for even a first-time offender to garner a sentence greater than Manafort’s. Selling just five grams of methamphetamine, a common pursuit by those addicted to meth who are trying to support their habit, creates a mandatory minimum sentence of five years.
Some would say that the meth addict should get a sentence longer than Manafort’s or about the same, based on the dangers that meth poses. Of course, Manafort’s crimes, which involved millions of dollars and foreign influence, posed a great danger as well. And the oft-stated imperative to deter drug dealing through long sentences doesn’t find much logical support. To be deterred from crime, someone needs to know what the potential cost is and then make a rational cost-benefit analysis. Drug dealers often fail on both counts: They commonly don’t know the potential penalties in federal court (since most cases are taken to the state system) and they are only rarely making rational evaluations of their choices. So do most violent criminals. White-collar criminals do not; businesspeople are trained in doing such analyses. The deterrence argument makes much more sense when applied to someone like Manafort rather than the meth addict.
In a career dedicated to criminal law, I have never met a person who enjoyed prison. Paul Manafort won’t either. Shorter sentences can achieve the same results, or better; a recent Brennan Center for Justice report found that 40 percent of the U.S. prison population is incarcerated without a compelling public safety purpose.
We need to realize that when we over-punish wide swaths of people, we punish ourselves as well. We pay, after all, and the longer they are in prison, the more we pay. At the same time, we denigrate the thing that matters the most to Americans whether they are conservative or progressive: liberty. When we deprive liberty to our fellow citizens beyond what is necessary to solve a problem, we do exactly that.
Paul Manafort committed serious crimes and received sentencing that would devastate anyone. The lesson should not be that he needs to suffer more but that we hurt too many for too long in nearly every other kind of case. As a nation that loves liberty more than vengeance and redemption more than retribution, we are called to seek better.
Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas in Minnesota. He taught at Baylor Law School from 2000-2010.