SDRAWKCAB

We are getting it backwards. "WE" meaning the criminal defense community as we continue to criticize the sentence handed to Paul Manafort. 

The internet and the opinion pages are alive with examples of harsh sentences handed out to the indigent clients of public defenders. "How could my client get life in prison in California for stealing a pair of pants while Manafort gets 47 months?" writes former Public Defender Rachel Marshall Sunday in an OpEd piece here in the Washington Post. 

The question isn't why Manafort got 47 months. The question and conversation we need to be having is why a poor man with two priors decades old was sentenced to prison for life for stealing a pair of pants in a scheme to obtain money to buy a car seat for his new born son? 

Judge Ellis, who sentenced Manafort was quoted over the weekend asking if anyone criticizing the sentence has ever spent a week in prison, or even a day?  That is the conversation we need to be having. 

Prison has a destructive effect on the individual and the soul. 
Think for a moment the destructive effect on you-Ms. Reader- and your family, if you were incarcerated for six months. Would your bills be paid? Would you lose your house, your car, your credit rating? How would it affect your family? Assume an average life span of seventy five years. An eight year sentence takes ten percent of that precious time away.   If you're 70 and statistically will not live until 80, would you celebrate a five year sentence? Does anybody truly think spending your remaining years behind bars, away from family and decent health care, is a lenient sentence? Have you ever woken up in the middle of the night sick? Take a Tylenol or a cough medicine or go to the ER. Good luck getting care within ten hours if you wake up at 2AM ill in prison.  You sit and suffer with your fate in the hands of people who resent your presence and enjoy seeing you suffer. 

And what of the deterrent effect?  How many middle-aged white men who are lobbyists in DC sat around Saturday night and plotted to commit crimes and evade taxes because they see what happened to Manafort as a slap on the wrist and are willing to risk what he is going through? 

Slap on the wrist? You go to a detention facility and be confined to a wheel chair and spend endless hours pondering what another human being is going to sentence you to. "You can beat the rap, but not the ride." Manafort did neither. 

The conversation we need to be having as criminal defense attorneys is the disastrous affect prison has on people. That a year in prison affects a person's life for the next five years and five years in prison creates obstacles that most people will never overcome. 

The conversation we should be having is why we have a system that allows prosecutors to threaten people with decades of time for crimes that do not physically hurt anyone. Tax evasion is bad. What Manafort did does not affect your blogger or you in the least. If Manafort had never been caught, life would have gone on unaffected for all of us. 

We have it "SDRAWKCAB"  which is "Backwards" spelled Backwards. 

We are missing an opportunity and shame on us. 

Coming Monday: Revenge of the Jedi and Mr. Markus. 

BAD MOON RISING

This is how it starts. 
A high profile sentencing. 
A perceived unfairness and hysterical commentary that a rich-white man got a break from a liberal-activist judge (never mind Judge T.S. Ellis  was appointed by Ronald Wilson Reagan) and then the politicians take over. 
"It's an outrage!...Judges cannot be trusted!...."
And the cry for minimum mandatory sentences will be taken up. 

Nobody runs for office and wins on the platform of having reasonable sentencing laws. 

Maximum sentences for any crime becomes the cry. And the public, indigent, demands action. 

Until someone is arrested and convicted and they are sitting in our office. 

"We don't understand Rumpole. Our (husband, father, brother, sister, mother) led an exemplary life for fifty years, Then they ran into money trouble and committed this crime. No one was hurt. The money was paid back. They are 70 years old. They have health troubles. They have lost their license. Why must the judge impose a twelve year minimum mandatory sentence?" 

Rumpole: "Under the Paul Manafort sentencing reform act of 2020, a Judge must impose a minimum of twelve years prison on all people convicted of white collar fraud claims if they have no prior record, have a college degree, used a computer for their crimes, and are considered 'a person of privilege' because the sentencing act clearly states people of privilege should receive an additional punishment for abusing their privilege so as to restore the public's trust in the criminal justice system. I'm sorry, there is nothing anyone can do."

Mark our words- despite the horrific unfairness of the sentencing guidelines, things are about to get worse, not better, because of this stupid case. How many of us would give almost anything to have a Judge of courage, wisdom and integrity like Judge Ellis sitting in judgement on our client's white collar fraud sentencing? 

But he, and the rest of the judiciary are about to lose their discretion in this area. 

A bad moon is rising. 

IN DEFENSE OF PAUL MANAFORT

Paul Manafort is sixty-nine years old. He has no prior record. He worked and created a distinguished career for himself in politics until the last several years when he sold his loyalty and common sense for money. We are no fans of Paul Manafort. He went to work for an incompetent nincompoop only to enrich himself and place himself close to the seat of power. 

Manafort went to trial on his case and lost and because he lost he is facing twenty years in prison. Let's say that slowly. A sixty-nine year old man who was convicted of his first non-violent crime has sentencing guidelines that recommend a judge sentence him to twenty years in prison.

What kind of legal system does that to one of its citizens? 

Lets look at the  3553(a) factors (you state court judges can click on over to the Nickelodeon site now, this is federal legal stuff). 

(1) 

the nature and circumstances of the  offense and the history and characteristics of the defendant;

 
Manafort has no priors.  Let's skip  to the other stuff for a moment, 

(2) the need for the sentence imposed—

(A)

to reflect the seriousness of the offense  to promote respect for the law, and to provide just punishment for the offense;

We are a fairly well read and educated blogger. We cannot tell you specifically what Manafort did. He met with some Russians. He got paid some money. He moved it around to hide it (a 1956 or 1957 money laundering count probably). But what specifically did he do? And if we cannot tell you, how can a trucker in Boise, Idaho, be expected to know and be deterred from meeting with Russians to influence American elections? How can the naturalized Mexican/American hotel housekeeper in Las Vegas, who works two jobs and has two kids to support as a single mom be expected not to fly to Paris or Helsinki and meet with Russian diplomats if we aren't sure what Manafort did. In other words, there really is no need for deterrence here. If the Uber driver/school teacher in Baltimore wants to meet with the Russians and launder ten million bucks and influence the next election, he's not going to worry about what Manafort got.  

(B)

to afford adequate deterrence to criminal conduct;

 

See above. 

(C)

to protect the public from further crimes of the defendant; and

 

See above. Is anyone truly worried that if Manafort got a five year sentence he would be up to his old tricks on  Mike Pence or Jenna Bush's 2024 presidential campaign? 

(D)

to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

Admittedly Manafort needs a college level course in ethics and the US Constitution. But he doesn't need it in prison. 

The fact of the matter is that our federal legal system is designed to crush defendants who go to trial and lose. There is no understanding of why the crime was committed. There is no recognition that we do not need to warehouse sixty-nine year old disgraced defendants. There is just the crushing monolith of the US Government steamrolling defendants who aren't wise enough to hire David O Markus and his firm. 

Make no mistake that Manafort's case is another straw on the back of the sixth amendment right to trial. Each defendant who has the audacity to force the crown to prove it's accusations, and each defendant who loses and is given a multi-decades sentence becomes another straw breaking the back of the right to trial. We are rapidly approaching a time where attorneys have more skill and experience arguing the nuances of the enhancements under the guidelines or reasons for a downward variance than have the experience to stare down a federal agent on cross examination because they know they are lying. 

We are going to rue the day.