On March 7, Paul Manafort was sentenced by U.S. District Court Judge T.S. Ellis on eight counts of tax evasion and bank fraud. Manafort was sentenced to 47 months in federal prison though under statute, he could have received up to a 10-year sentence and guidelines recommended that much time or more.
In a highly ridiculed and patently bizarre attempt to justify what many viewed as a surprisingly short prison sentence, Judge Ellis claimed that Manafort had lived “an otherwise blameless life.” Less than a week later, on the other side of the globe, while sentencing Australian Cardinal George Pell on two counts of sexual molestation, Judge Peter Kidd made precisely the same statement.
It is both disturbing and absurd to hear a sentencing judge remark on the quantum of blame or virtue amassed over the lifetime of any human being. And it is particularly stunning to hear the phrase “otherwise blameless” used in the cases of two men convicted of incredible abuses of significant privilege and power.
Though federal sentencing guidelines authorize an inquiry into a person’s history and characteristics, “otherwise blameless” is a precariously subjective evaluation for a judge to express. This concerning statement is rendered all the more alarming since judges harbor the same racial biases as the general population. The result, all too often, is Black and brown people are viewed as blameworthy while white people receive leniency.
But here’s the kicker: Judge Ellis was spot on about something just as important, and it isn’t making headlines. Speaking to the theoretical listener who might not think a 47-month sentence is sufficiently punitive, Judge Ellis noted, “Go spend a day in the jail or penitentiary of the federal government. Spend a week there.”
Our country has a mass incarceration crisis, fueled by fear-mongering, racism, deficient procedural protections, aggressive and lopsided policing and prosecuting, underfunded public defense systems, pretrial incarceration, and exorbitant sentences.
Sentencing guidelines and mandatory minimums — once thought of as a way to diminish race and class disparities — have needlessly glutted our already crowded prisons. Typically the system actors bringing criminal charges and sentencing people to jail or prison have not themselves ever been incarcerated. And as of 2015, 95 percent of elected prosecutors in the nation were white. Given this foundational truth, Judge Ellis was right to admonish those who think four years of incarceration could be a cake walk — for Manafort, for anybody.
Prior to joining the ACLU, I worked for a federal judge who was widely condemned for his “lenient” 22-year sentence of Ahmed Ressam, the would-be Millennium Bomber. Three times Ressam’s sentence was overturned for not being harsh enough. Judge Coughenour faced tremendous personal and professional criticism for his decision and, in the face of numerous reversals, ultimately increased Ressam’s sentence to 37 years.
Though Judge Coughenour ultimately gave Ressam a very long sentence, he knew — from visiting people in prison and witnessing the extreme physical scars Ressam bore from years in solitary confinement — that no amount of time incarcerated, particularly in solitary, should be taken lightly. He has thus used his platform as a federal judge to speak candidly about the moral difficulties raised by the act of depriving a human being of liberty and to unequivocally emphasize the horrors of incarceration. He remains today an outspoken critic of guidelines that encourage higher sentences and discourage individualized determinations.
Every day, judges render harsh, punitive, and unnecessary criminal justice decisions that can fundamentally shift — or even end — the lives of the people who come before them in their courtrooms. Elected judges are particularly susceptible to misplaced political pressures steeped in “law and order” attitudes — which affect how they set bail, sentence, and consider alternatives to incarceration.
But Judge Ellis is a federal judge, with lifetime tenure, ostensibly removed from the political pressures of election and public opinions rooted in “law and order” sentiment. At Manafort’s sentencing hearing, he set into motion a dangerous trend of attaching shorter sentences to the “otherwise blameless life” of prominent people who break the law.
That was a mistake.
It would have sent a far more powerful message if Judge Ellis had instead emphasized the horrors of incarceration as a basis for departing downward from the sentencing guidelines. Hopefully Judge Ellis — and similarly powerful judicial actors — does so regularly for far less powerful and privileged individuals who come before him.