LAW SCHOOL PROFESSOR AND LEGAL ANALYST ON PAUL MANAFORT SENTENCING
Western Michigan University Cooley Law School Professor Jeffrey Swartz, a former prosecutor and former Judge in Miami-Dade County, is offering the below statement regarding the sentencing of Paul Manafort.
As a former prosecutor I am incensed at Judge T. S. Ellis III’s hubris at believing he sees the Manafort prosecution for one thing, while ignoring the greater issues of continuing to punish non-violent, but yet serious white-collar behavior so leniently. Mr. Manfort’s attorneys successfully invoked the constant battle between the two theories of punishment that have been the stalwart of our system of justice for two hundred years, Utilitarianism (the certainty of punishment as a general deterrence to society not to violate the law) and Retributivism (addressing sentencing to the individual defendant based upon their own moral blameworthiness, i.e. their just deserts).
Judge Ellis’ findings give short shrift to the underlying criminality of Manfort’s conduct and business. The prosecution sentencing memorandum and, although we have not seen it, what appears to be in the Pre-Sentence Investigation and Report seem to outline the long history of Manfort’s criminal behavior, contempt for the laws of the United States, our system of justice even while out on bond, including his attempt to tamper with witnesses, and his disregard for the undermining of our democracy and form of government.
The Sentencing Guidelines were promulgated by Congress to provide a means for judges to standardize the approach toward how to appropriately punish the conduct of defendants based upon objective criteria. They also contemplate that the court will consider “all relevant conduct”, not just that conduct for which the defendant was convicted. Although they are just “guidelines” they provide for departures both upwards and downwards, giving the court “appropriate discretion” to adjust its ultimate decision, where the findings of the court support the exercise of that discretion. In that regard they are both Utilitarian (certainty and consistency of punishment) and retributive (assuring an individualistic approach to a particular defendant).
Judge Ellis ignored everything other than his own opinion that there was an ulterior motive for this prosecution. He more than exercised his discretion. I would argue that he abused that discretion in the grossest way. A guidelines range of 234 to 288 months may have been more severe than most thought appropriate. However, Ellis reduced that to less than twenty percent of the bottom of those guidelines at forty-seven months less nine months credit for time served.
The penalty Ellis imposed, even in the face of not granting Manafort even the three-point adjustment for acceptance of responsibility, seems to indicate a disdain for white-collar prosecution in general. A disdain many ex-prosecutors, who have appeared before him, have stated he has exhibited in the past. He also made clear his displeasure at the government’s prosecution of Mr. Manafort, which was exhibited on more that one occasion through specific statements he verbalized and his rulings at trial, by interfering in the government’s introduction of evidence and testimony.
The depth and breadth of Manfort’s criminality, and its effect on our society was set forth in the prosecution’s memorandum, which Ellis chose to ignore. This was not a “one-off” as Ellis seemed to allude in the pronouncement of his sentence, but a lifetime systematic course of conduct. Manafort is a criminal in every sense of the word, who deserved far more than he received.
The only saving grace is that Manafort must face sentencing before Judge Amy Berman Jackson next week. Judge Jackson has likewise indicated a disdain for a party in her case. Judge Jackson is the judge who ordered Manafort into custody for his actions while out on bond. It was before her that Manafort entered into a plea agreement, which mandated his truthful and complete cooperation with the special counsel’s investigation, to which Manafort chose to not cooperate fully, but to actually lie to investigators and grand jurors. I could argue that in so doing he was attempting to obstruct justice.
I can only hope that Judge Jackson corrects Judge Ellis’ lack of perspective and balance. It is fair to expect that Jackson will sentence Manafort to an appropriate term of incarceration intended, not only to send a message to all those who would engage in the crimes in which Manafort engaged, but to give Manafort his just desserts. Whether it amounts to a “life” sentence or not, anything less than 120 to 144 months would be a true miscarriage of justice, in light of the fact that those guilty of far less egregious behavior receive greater sentences than Manafort received from Ellis.