The sentence handed down by Judge T.S. Ellis to Paul Manafort is shockingly light. Donald Trump’s former campaign chairman was convicted of various financial crimes and could have ended up with 25 years in prison. Instead, Judge Ellis sentenced him to 47 months. To add insult to the overall injury, Ellis opined that Manafort had lived “an otherwise blameless life” as part of the justification for the light sentence.
Judge Ellis handed down a fundamentally biased sentence. Law Twitter is right about that, and rightly inflamed. Ellis is the same judge who gave former Louisiana congressman Bill Jefferson a 13-year sentence following conviction on corruption charges. It’s the longest sentence ever handed out to a member of Congress. (Jefferson was released after serving only four years, when Ellis accepted a Jefferson plea deal in light of the Supreme Court’s decision in McDonnell v. United States, which redefined our understanding of bribery of public officials.) This seems like a good time to mention that Jefferson is an African American while Manafort is an otherwise blameless white man.
The Manafort sentence is a miscarriage of justice, but let’s not learn the wrong lesson from this travesty. The goal here really shouldn’t be to find a way to incarcerate the ostrich-wearing white man for just as long as a similarly situated black man would be sent to prison. The goal must be to reduce the sentences of nonwhite felons to something approaching what wealthy white men have come to expect.
The US Sentencing Commission found that black men received 19.1 percent more prison time than similarly situated white felons. That report adjusted for criminal history, violence, and plea bargains.
Mandatory minimums and sentencing guidelines are not a solution to that problem. All those do is ratchet up the prison time for African Americans, while judges can still sentence white convicts at the low end of the guidelines. And that’s if prosecutors even seek the highest possible charges against white suspects, which we know they don’t. A Michigan Law School study found that prosecutors were 75 percent more likely to seek a charge that included a mandatory minimum sentence for black suspects than white ones suspected of the same crime.
There aren’t enough years left in Paul Manafort’s life for him to be incarcerated for long enough to make up for the endemic white privilege in the criminal-justice system. Honestly, 47 months is a long time in prison. We got him! And if 47 months doesn’t fully satisfy what you believe Manafort deserves, don’t despair. Next week Manafort will be sentenced again by US District Judge Amy Berman Jackson, who isn’t known for her leniency. Manafort is 69 years old and will be going to jail for crimes. It’s going to be okay.
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What we need is for the next Paul Manafort to also get 47 months, not 47 months plus 10 years for colluding while black.
And the way to do that is to impeach judges who act like T.S. Ellis. If this sounds extreme, just ask nonwhites in this country about their views on judicial ethics; we’d tell you that racial disparity in sentencing is unethical on its privileged white face. We have a constitutional process to deal with lifetime-appointed judges whose conduct we deem to be unethical—it’s called impeachment. Yes, impeaching a federal judge follows the same process that hasn’t been started against the president of the United States, even though he goes out there and commits crimes on TV.
Even if you want to stop somewhere short of impeachment, there are things we might do to ensure our federal judiciary isn’t handing out racially biased sentences. Sherrilyn Ifill, director of the NAACP legal defense fund, has been demanding implicit bias training for federal judges for years. But it currently doesn’t happen. Federal judges aren’t regularly put through independent third-party performance reviews. We don’t have nearly enough independent oversight of the judicial branch; we just have the occasional judge reviewing ethics complaints lodged against their colleagues on the bench. (There were 83 ethics complaints lodged against Supreme Court Justice Brett Kavanaugh—and they were all thrown out because a judge decided he had no independent authority to discipline a Supreme Court justice anyway.)
Some judges are biased and don’t even know it. Some judges are biased and, arguably, don’t want to be, and would improve if things were explained to them. But I can’t tell you which judges are the most racially biased when it comes to sentencing, because for some reason we’ve chosen not to keep good, publicly available statistics analyzing all the data these judges produce about themselves over the course of their careers.
We live in the damn future and it would take, max, three clicks for me to tell you whether the right fielder for the Yankees is likely to pull the ball with two strikes, but I can’t tell you whether a white judge who has been on the bench for 30 years is racist to a statistically provable level. There is software available right now that can tell you what cases and even phrases judges like to cite when making certain legal arguments, but we don’t turn that penetrative algorithm on to figure out if a judge has a penchant for throwing black people in the slammer while letting white frat boys off with a warning. The truth is out there, we just don’t currently care enough about racism in the judicial branch to research it and act upon it.
This is where we need media attention, outrage, and reform. I don’t really care that Manafort will be going to jail for some years instead of more years. I care that racially biased judges get to decide, and there are too few people willing to drum them off the bench.
This is a fight that Democrats better be ready to have. Donald Trump is stacking the courts with young, archconservative, biased federal judges. Those people are going to be there long after Trump is back to hawking steaks at Mar-a-Lago. Democrats need to be willing to fight these people for their rest of their lives.
