Wednesday, March 13, 2019
Paul Manafort has now been sentenced by two different judges in two different courts on two different cases. It remains to be seen if we will have a third sentencing as Manhattan District Attorney Cyrus Vance Jr. just announced additional charges against Manafort. (see here & here). A week ago Manafort received a sentence of 47 months from a Virginia federal district court judge. (see Doug Berman's Sentencing Law & Policy Blog here) Today he received a sentence of 73 months from a D.C. federal district court judge. Although the latter sentence was 73 months, some of the sentence is consecutive and some of it concurrent. In total it comes to a sentence of 7 1/2 years. Some claimed the first sentence, a below guidelines sentence, was too light. And many wondered if this could be appealed. Others felt it was best to wait for this next sentence as the next judge would likely be closer to the guideline range. Some thoughts:
- When the sentencing guidelines were created they initially were mandatory, not permitting judicial discretion to sentence the individual as an individual and not a mere numerical calculation. I certainly criticized this.
- When discretion with sentencing happened as a result of a litany of Supreme Court decisions - Blakely, Booker, Gall, Rita, etc. - judges could look at the 3553(a) sentencing factors and sentence the individual as opposed to a mere numerical calculation. I was pleased to see this happen.
- But many of us also wondered what would happen once judges were given discretion to deviate from the guidelines. Would this remove the original intent of the guidelines, an intent to have "predictability and consistency" in sentencing. Would it send sentencing back to the "wild west" of a no guidelines era?
- In my opinion guidelines needed to happen because appellate court judges were not willing to really review district court sentencing. Clearly, because they are not the finders of fact, appellate judges need to give the trial court discretion. But appellate courts also need to monitor sentences that are appealed, in order to ascertain whether there has been an abuse of discretion.
- White collar sentences are different from sentences in street crimes cases. This should not be because of privilege, and certainly not because of race. But rather because the very nature of these crimes are different. (see The Challenge of White Collar Sentencing). And clearly when they differ because of race or privilege that needs to be corrected.
- Back in 2007 I wrote a short piece in the Yale Law Journal Forum (see here), with Andrew Weissmann (w/ Joshua Block) writing a piece presenting another side (see here) of this picture. The opening statement of the Weissmann/Block Essay is "At the margins, the current Federal Sentencing Guidelines for fraud and other white-collar offenses are too severe." He then goes on to criticize my arguments. My piece, Throwing Away the Key" argued that "[t]he problem [then was] not only the draconian sentences that white-collar offenders are receiving, but the fact that because of the elimination of parole they [would] actually have to serve them." It bothered me that Chalana McFarland, a first-time offender, received a thirty-year prison term for her role in a mortgage fraud scheme that skimmed twenty million dollars from the sale of over one hundred homes from 1999 to 2002. Thirty years was too high for this first-time offender who had a sentence determined by a numerical calculation.
- So the outliers are questioned here, whether it be the unusually low sentence in Manafort's first case, or the usually high sentence that individuals like Chalana McFarland initially received. And perhaps with Manafort's sentence of today, and potential sentence from new charges, it will find the medium place that alleviates my questioning. But we do need to ask appellate court judges to review sentences to assure that sentences are not extreme - whether it high or low.
- I don't expect an answer from Andrew Weissmann on this now and respect the quiet approach of the Special Counsel's investigation. But perhaps when it is over we should be writing the joint article that looks at how best to achieve predictability and consistency in sentencing without outliers and without taking away judicial discretion.