Everything That's Wrong With Justice In America (w/Updates)

Update: once again, glad to see everyone visiting from Mike's Blog Round Up at Crooks & Liars, thanks again Batocchio! By the by, in terms of updating we should be getting Manafort's second sentence hearing in front of Judge Jackson today, so keep an eye on this site for further updates that are below!

So, still reeling a bit from the ruling last week by one of the judges overseeing Paul Manafort's fate. The immediate reaction I and others following the trial(s) of Manafort's crimes had when we heard Judge Ellis' sentencing the convicted felon to 47 months (with 9 months accrued meaning an even shorter sentence) fell between "stunned" and "outraged."

It's taken a day or two to recover from the anger of what seems an unjust ruling - that Manafort, found guilty of bank fraud and other frauds to the tune of millions of dollars was getting a shorter sentence than people getting 20 years for possessing a $20 bag of pot - to try and gain a better perspective.

At best, I can point to Ken White's take at the Atlantic. He's broken down the reactions to Manafort's light punishment from Ellis into six coherent arguments. I am going to add my own thoughts to each:

First, there can’t be a sentence without an investigation. After 9/11, the United States Department of Justice and the U.S. Attorney’s Offices that it controls shifted resources and focus from white-collar crime to drugs, guns, and immigration. In Los Angeles, the U.S. Attorney’s Office shuttered the Public Corruption and Government Fraud Section, where I served. Investigations of people like Manafort—people who have committed complex financial crimes—are time-consuming and resource-intensive. You can jail 20 drug traffickers for life with the resources it took to prosecute Manafort. America picks who goes to jail when it picks whom to investigate—which is one of the reasons so few people involved in the 2008 Wall Street debacle went to jail.

This is key. Our legal system has a finite amount of resources. It would be pretty to think every crook and questionable act can be investigated, but there's only so much our law enforcement can do at one time. I would note that we could well have chosen to investigate white collar crimes - acts of fraud that ruin thousands and cost billions (not even millions anymore) - but the lack of manpower (and lack of willpower) restricts such investigations. It's in that kind of environment the high-level crooks can raid and pillage with impunity (and kinda explains why a con artist like trump kept avoiding criminal investigations into fraud until now)...

Second, prosecutors have enormous power over who goes to jail and for how long. That power doesn’t just involve deciding who gets indicted. It involves deciding how he gets indicted. Manafort faced a recommended sentencing range of 19 to 24 years under U.S. sentencing guidelines. But that range was driven only in part by what he actually did. It was driven just as much by how the special counsel’s office chose to pursue the case—what charges it brought, what evidence it presented to Ellis, and what part of Manafort’s history it cited as “relevant conduct” at sentencing...

Manafort had committed a lot of questionable acts, but prosecutors only charged him on things they could prove in a courtroom. And even then, a jury has to accept the prosecutors' arguments (Manafort's jury in his first trial found him guilty on 8 charges out of 18, and one juror held out on the remaining 10). This is, as a side note, one of the reasons why prosecutors overcharge suspects in order to force plea deals...

Third, Congress has given Ellis the power to give people like Manafort a break, but has denied him that power when the defendant is accused of many blue-collar crimes. Last year, Ellis sentenced a 37-year-old man named Frederick Turner to 40 years in federal prison for methamphetamine distribution. He had no choice: Congress passed laws making 40 years the mandatory minimum sentence...

This is one of the points where the system itself is insane and broken: The mandatory minimums set by legislators - often pursuing their "tough on crime" and "war on drugs" election campaigns - make it difficult for judges to apply sentences that would be truthfully just. Even Ellis complained about the severity of jail time he was inflicting on Turner, and in Manafort's case where no mandatory time was required Ellis could well have wanted a more lenient punishment (the problem is Ellis is offering mercy to someone who hadn't earned it).

As White notes, there is a genuine legal distinction between what we call "Blue-Collar Crimes" - crimes committed by the poor such as robbery, burglary, drug dealing, acts of violence - and "White-Collar Crimes" - crimes committed by the wealthy or connected such as bribery, tax evasion, money laundering for drug dealers, and acts of fraud - to where we have essentially two legal systems. One for the poor and one for the rich. Guess which one profits Manafort?

Fourth, the U.S. sentencing guidelines treat some crimes more harshly than others, and though, unlike mandatory minimums, they are only recommendations, not strictures, they strongly influence judges. USA Today reported that fraud cases in Ellis’s district yielded an average sentence of 36 months, versus 66 months for firearms charges and 84 months for drug charges, all higher than the national average. Ellis announced that he was sentencing Manafort below the recommended guideline range because that range was far above what defendants received in similar cases. That is, in fact, a factor that he’s required by law to consider. Manafort’s case was arguably much more serious than others, but there’s no question that his sentencing range was atypically high for a white-collar defendant... 

This is the point where Ellis' ruling gets to be a joke. Ellis went and compared Manafort's fate to other white-collar criminals and deemed the prosecutors' recommended sentencing "too harsh". Nevermind the unique circumstances that Manafort is in, or the scale of severity Manafort's crimes are at. All Ellis is seeing is a first-time offender in his court and has decided that Manafort's "blameless life" didn't deserve any worse than the 19 1/2 years being recommended.

To quote another commentator from the Atlantic - Franklin Foer - about Judge Ellis' tone-deaf understanding, about how he looked at a decades-long criminal and still saw "a blameless life":

In an otherwise blameless life, Paul Manafort lobbied on behalf of the tobacco industry and wangled millions in tax breaks for corporations...

In an otherwise blameless life, he worked to keep arms flowing to the Angolan generalissimo Jonas Savimbi, a monstrous leader bankrolled by the apartheid government in South Africa. While Manafort helped portray his client as an anti-communist “freedom fighter,” Savimbi’s army planted millions of land mines in peasant fields, resulting in 15,000 amputees...

In an otherwise blameless life, Manafort was kicked out of the lobbying firm he co-founded, accused of inflating his expenses and cutting his partners out of deals...

In an otherwise blameless life, he spent a decade as the chief political adviser to a clique of former gangsters in Ukraine. This clique hoped to capture control of the state so that it could enrich itself with government contracts and privatization agreements. This was a group closely allied with the Kremlin, and Manafort masterminded its rise to power—thereby enabling Ukraine’s slide into Vladimir Putin’s orbit...

In an otherwise blameless life, he produced a public-relations campaign to convince Washington that Ukrainian President Viktor Yanukovych was acting within his democratic rights and duties when he imprisoned his most compelling rival for power...

In an otherwise blameless life, he stood mute as Yanukovych’s police killed 130 protesters in the Maidan...

In an otherwise blameless life, he tried to use his perch atop the Trump campaign to help salvage his sorry financial situation. He installed one of his protégés as the head of the pro-Trump super PAC Rebuilding America. His friend allegedly funneled $125,000 from the super PAC to pay off one of Manafort’s nagging debts...

In an otherwise blameless life, Manafort was found guilty of tax evasion on an industrial scale. Rather than paying his fair share to help fund national defense and public health, he kept his cash in Cyprus and wired it home to buy more than $1 million in bespoke clothing...

In an otherwise blameless life, he acted with impunity, as if the laws never applied to him. When presented with a chance to show remorse to the court, he couldn’t find that sentiment within his being...

All of those acts - and more - were not sudden, or an impulse, or based on the vagaries of foolish youthful intent. It's all a track record of bad behavior that profited from other people's sufferings without care to fact or rules or human decency.

Ellis is choosing to think of Manafort as a first-time offender rather than someone who had willfully broken and ignored laws, and only got away with it for years all because Manafort lived at a level of society where accountability to the law was merely optional.

Anyway, back to White:

Fifth, money drives cases. Manafort’s criminal defense cost more than most defendants make in a lifetime. Money can’t buy freedom—Manafort’s money couldn’t save him from multiple convictions, because the federal government’s power is overwhelming even to a multimillionaire. But money buys a capable defense with the resources it needs. An extremely experienced, qualified defense team with plenty of time makes a profound difference at every stage of a case. Even when rich people get convicted, money helps get them the best plea deals, the most persuasive sentencing presentations, and often the most lenient sentences.

This is another point where the rich have it easier over the poor in our legal system. People like Manafort can afford lawyers with better resources and better experience while people who can't afford a lawyer have to rely on Public Defenders handling 65-plus cases a month and unable to even get their clients out on bail (meaning a lot of poor people are stewing in the local lockup awaiting trials that are seven months to a year down the road, if ever). Manafort by the by was out on bail before/during the trial, but then got it revoked - by the judge in his other trial, more on that later - when it turned out he was trying to witness-tamper in such a crass manner the judge had no choice but to revoke. Meanwhile, poor defendants can't even that level of mercy. Our cash bond prison system is severely broken...

Sixth, and finally, judges are human. Racism and bias of every sort play a role in the system, but it’s too simplistic to say the problem is that particular judges are racist. The problem is that judges give breaks to people with whom they can identify—people whose humanity they recognize. We’re wired to identify with people like us. Judges—particularly federal judges—tend to come from backgrounds closer to Manafort’s than to the average drug dealer’s. Even when judges are born and raised in poverty, the process of becoming a lawyer, having a career, and becoming a judge makes them inexorably more like Manafort. The system has a homogenizing effect...

Ellis didn't see a globe-spanning criminal ruining thousands of lives, he saw someone who might have been a next-door neighbor at his gated community. This is where the bias of the judge him/herself distorts the need for justice.

Each of White's points are problems we've had with our legal system for some time, decades in fact. And sadly over those decades our legislators who write the laws and the administrators who enforce the laws have done little to balance the scales between rich and poor, against the racism and sexism, towards a truly honest courtroom where there can be "justice for all".

Sending Manafort to prison for barely under 40 months - remember, he's getting reduced for time served - doesn't seem just at all.

The only thing that prevents this from being a total mockery of the law is that Manafort is facing a second courtroom sentencing involving the other crimes he's committed in THAT jurisdiction. He'd already plead out to two conspiracy charges (related to Mueller's Russian investigations) in Judge Jackson's court... but he's also pulled off a lot of dumb stunts in her courtroom to where she's not going to show him any favor at all (she is also the presiding judge of Roger "Can't Keep My Mouth Shut" Stone, and she's already had enough of his BS as is).

There is hope that Manafort will still face stronger justice for his sins.

But in the meantime, Manafort's current leniency - to where it felt like he's getting a "Get Out of Jail Free" deal - exposes a broken American legal system in worse shape than our own bridges and highways.

Everything needs fixing, America. What the hell.

Revisions to the Update (3/13/19): Welp. Judge Jackson read him the riot act... and still only added 73 months on the two counts Manafort plead to... and made 30 of those months concurrent (same time) as his existing sentence... so he's looking at a total of 7.5 years for all the crap he's pulled for two decades. Gangbangers, seriously. Stop dealing drugs and getting life sentences on that. Get into the white-collar shit that Manafort does and get out of jail in less than a decade!!!

Followup to the Revisions to the Update (ten minutes later): The New York DA - think Jack McCoy from Law & Order, except 80 percent more real and 90 percent more pissed off - dropped grand jury charges (16 of them) on Manafort for state-level crimes. Separate from the crap Manafort was charged with at the federal level - avoiding double jeopardy issues - these are still tied into a lot of the financial crimes that Manafort committed. Meaning if trump pardons him NOW for the federal prison time, Manafort can't claim Fifth Amendment protection from self-incrimination. Essentially, trump can't save his buddy from these charges.

This had to have been a land-speed record by the legal system. The DA probably wanted to make sure he could do this before trump had time to break out his pen.

Additional Followup to the Followup to the Revisions (June 2021): Well dammit, this missed my notice but back in February 2021 the New York Supreme Court said the New York DA couldn't file those charges. Apparently, they did incur double jeopardy. Since trump pardoned Manafort towards the end of his term, this means Manafort walks away from answering for his years of fraud.

/headdesk