Bloomberg Law
March 21, 2019, 8:01 AM

INSIGHT: Manafort’s Sentencings—A Clarion Call to Re-Calibrate U.S. Sentencing Guidelines

Alan Ellis
Alan Ellis
Law Offices of Alan Ellis
Mark H. Allenbaugh
Mark H. Allenbaugh

Paul Manafort’s sentences say something fundamentally important about the U.S. Sentencing Guidelines, which provide judges with recommended sentences: they often are shockingly punitive and, as a result, are becoming largely irrelevant.

Manafort’s sentences totaled 90 months, with Judge T.S. Ellis III imposing 47 months and Judge Amy Berman Jackson imposing 73 months with 43 consecutive.

Judge Ellis found the Guidelines’ recommendation of at least 235 months’ imprisonment to be “vindictive” and “way out of whack. ” In Judge Jackson’s court, the Guidelines recommended at least 292 months, which far exceeded even the statutory maximum penalty of 120 months. Therefore, the 120-month statutory maximum became the recommended sentence.

While Judge Ellis sentenced far below the Guidelines in part because he found Manafort to have “led an otherwise blameless life,” Judge Jackson berated Manafort for living an “ostentatiously opulent” lifestyle and engaging in a “deliberate effort” to “undermine[] our political discourse.”

And while she stated that "[i]t’s hard to overstate the number of lies, the amount of fraud involved … and there is no good explanation to warrant the leniency requested,” Judge Jackson still imposed a sentence well below the 120-month recommended penalty.

Both Judges Agreed on Irrelevance

The Guidelines, then, were disregarded by two very different federal judges (Judge Ellis is a Reagan-appointee; Judge Jackson, an Obama-appointee) in distinct jurisdictions, sentencing the same defendant for similar conduct that each viewed quite differently. The judges disregarded the Guidelines because they both agreed, in essence, that the Guidelines provided no guidance at all.

As Judge Ellis noted in reviewing the statistics for the sentencing Guideline he used for Manafort, from 2008 through 2017, “the substantial majority of defendants … ended up with sentences below the guideline range.”

In actuality, data show that 38.5 percent of defendants (excluding cooperators) during that period received a sentence below the range. That over a third of defendants received sentences below that Guideline is still striking.

An even higher percentage (45.8 percent) of defendants (excluding cooperators) received sentences below the Guideline used by Judge Jackson. So, the fact that both judges decided to impose sentences well below the Guidelines’ recommendations was not at all unusual.

Moreover, the average sentence imposed on all offenders sentenced under the Guideline used by Judge Ellis was only 10 months, and for the one used by Judge Jackson it was 69 months. Thus, a 90-month sentence overall is well above what offenders typically receive under the same Guidelines applied to Manafort.
And this despite the significant downward variances granted by both judges.

In short, the combined 90-month sentence is both well above the average sentences imposed under these Guidelines, but also well below the what those Guidelines recommended.

Guidelines Need Recalibration

What help, then, do the Guidelines really provide if judges disregard them over a third and sometimes nearly half of the time because they recommend disproportionately punitive sentences?

What the Manafort sentencings plainly illustrate is that the Guidelines are desperately in need of re-calibration. And not just the Guidelines that applied to Manafort, but many others.

Judges across the country are increasingly declining to follow the Guidelines and are imposing sentences farther below them than ever before (although the sentences imposed still are significant). But because the law requires judges to consider what the Guidelines recommend, and then decide whether and how much to vary from them, the Guidelines necessarily skew sentencings upward, which have filled federal prisons beyond their capacity.

In principle, of course, having sentencing Guidelines administered by an expert body like the U.S. Sentencing Commission is a good idea inasmuch as the Guidelines are intended to promote uniformity, proportionality and certainty in sentencing. No one can argue with these principles; in fact, those are necessary traits in any system that seeks to do justice.

Systemic Problem for Federal Offenses

But when the Guidelines recommend sentences for first time economic offenders that exceed even what a kidnapper, on average, would receive—as was the case before Judge Ellis; or greatly exceed even the statutory maximum—as was the case before Judge Jackson, there is a problem. And this problem is systemic with the Guidelines across the board for all types of federal offenses, not just economic ones.

As Justice Anthony M. Kennedy rightly observed over 15 years ago in a speech to the American Bar Association, “[i]n the federal system the sentencing guidelines are responsible in part for the increase in prison terms. In my view the guidelines were, and are, necessary. Before they were in place, a wide disparity existed among the sentences given by different judges, and even among sentences given by a single judge. As my colleague Justice Breyer has pointed out, however, the compromise that led to the guidelines led also to an increase in the length of prison terms. We should revisit this compromise. The Federal Sentencing Guidelines should be revised downward.”

The Commission failed to heed Justice Kennedy’s call to action then. If the Guidelines are to continue to have any relevancy for federal judges, and seek to do justice, the Commission can no longer delay action.

Manafort’s sentences serve as a clarion call to the U.S. Sentencing Commission to re-calibrate the Guidelines.

Author Information

Alan Ellis, a past president of the National Association of Criminal Defense Lawyers and Fulbright Award winner, is a criminal defense lawyer with offices in San Francisco and New York. With more than 50 years of experience as a practicing lawyer, law professor, and federal law clerk, he is a nationally recognized authority in the fields of federal plea bargaining, sentencing, prison matters, appeals, and habeas corpus 2255 motions with more than 120 articles and books and 70 lectures, presentations and speaking engagements to his credit.

Mark H. Allenbaugh, co-founder of Sentencing Stats, LLC, is a nationally recognized expert on federal sentencing, law, policy and practice and is a former staff attorney for the U.S. Sentencing Commission. He is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2nd ed., Foundation Press, 2002).