Last week, President Donald Trump’s former campaign chairman Paul Manafort was sentenced to nearly four years in prison for committing widespread fraud involving millions of dollars
Under federal sentencing guidelines, Manafort faced between 19 to 24 years in prison for pre-meditated financial crimes committed over several years that some say threatened our democratic institutions. Manafort’s less than four-year sentence is one-fifth of the recommended sentence.
My clients don’t get those kinds of reductions. I have represented many indigent federal defendants in the district court of Phoenix—poor people who can’t afford to hire their own lawyer. At federal sentencing, a guideline range is calculated based on set rules that figure in the type of offense, the criminal history of the defendant, and other aggravating and mitigating factors. Although the judge has discretion to depart from the guidelines, the rules also discourage judges from taking into account genuinely mitigating (but all too common) factors, like if the defendant was raised in an abusive and impoverished environment or is a single mother whose children will lose their sole parent.
At sentencing, I often fight for my clients by asking the judge to depart from the recommended sentence. My clients rarely receive any such reduction, even where their circumstances clearly merit it.
For Manafort to get a 188-month—80 percent-- reduction is a truly extraordinary event. I am not arguing that Paul Manafort’s sentence should have been longer. I am only asking what differentiates Manafort from my clients? If a judge can empathize with him and recognize that the sentencing guidelines are unnecessarily long for his circumstances, why doesn’t the same thing happen for my clients, like those suffering from crippling drug addiction or who are driven to crime in order to put food on the table?
Sentencing disparities exist in our criminal justice system based on race, background, and socio-economic status, in turn causing widespread disruption and harm to communities all over this country. Manafort is exceptional not only in the extraordinary sentencing reduction he received, but in being a white, privileged, wealthy defendant represented by a team of expensive defense attorneys. In our system of justice, it is normal for people like Manafort to be treated as exceptional and for others—poor and vulnerable people of color —to be treated as the unexceptional people who are hit with the full punitive force of punishment schemes.
The judge reasoned that Manafort’s greatly reduced sentence was reasonable partly because “he lived an otherwise blameless life.” But when people convicted of white-collar crime are sentenced, they often have no criminal record because they haven’t been caught before—their fraud is expensive and difficult to detect and law enforcement agencies have limited bandwidth to investigate complex crimes like bank fraud, money laundering, and tax evasion. Moreover, racial disparities drive every aspect of the criminal justice system from what neighborhoods are heavily policed to what kinds of schools are in those neighborhoods to who police stop, and even in what kinds of activities we criminalize.
The system must change and we the people must demand reform. We must see the Manafort sentencing for what it is: not as an isolated scandal, but a singular expression of systemic disease in our criminal justice system.
First, the judiciary must acknowledge that profound, systemic disparities in sentencing exist, even if they are hard to discern in the succession of distinct cases a judge encounters from the bench. We need better ways to look for these patterns of inequity and failed justice. For example, we could begin systematically tracking patterns of disparities by keeping a detailed national registry of sentences and the corollary profiles of the crimes and defendants.
Second, we must end the belief that decades long prison sentences are desirable. Paul Manafort—with his ostrich skin coat and fleet of well-heeled lawyers—will serve far less time than many poor people of color who commit far less serious crimes. But it’s those poor people of color who should be treated like Manafort, not vice versa.
Third, Paul Manafort was sentenced within the gold-standard of sentencing schemes— the federal system— which tries its best to hand out fair sentences based on objective, standardized criteria. But as his case reveals, even this system is grossly unfair based on who you are and who you know.
And yet the problems with federal sentencing pale in comparison to those in some states. The states matter because the vast majority of nonviolent crimes are prosecuted—and long sentences are handed out— in state courts.
Take for instance Arizona, where I practice. The federal government recently made a positive first step in the direction of sentencing reform—a modest step, even if long overdue and hard won, but the Arizona legislature has done the opposite, refusing to even hear a bill that would have undertaken similar reforms on the state level. Arizona has some of the harshest sentencing ranges in the country. For decades, lawmakers have passed mandatory minimum sentencing legislation, giving prosecutors enormous power to coerce defendants into taking plea deals.
In a state that has the fourth highest per capita incarceration rate in the country and one of the lowest levels of funding for public education, the costs of excessive sentences are born not just by criminal defendants, but by schoolchildren and taxpayers as well.
The time has come for America to recognize the systemic disparities in our criminal justice system and enact widespread reform. All criminal defendants should have a shot at reasonable sentences, not just the Paul Manaforts of the world. And the rest of us should stop presuming that long sentences are warranted in the first place.