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I’m disappointed to see someone as smart as Renato to use the Manafort sentence as an opportunity to raise the old bugaboo of “sentencing disparities” caused by judicial sentencing discretion. It’s misleading, if not disingenuous. 1/
A world without judicial sentencing discretion is not a world where everyone gets fair and equal sentences. It’s a world in which prosecutors wield an enormous amount of power and get to (sometimes unilaterally) dictate sentences. 2/
And, in case you were wondering how prosecutors exercise that power—the answer is that it’s very hard to know. Judicial sentencing discretion is open, transparent, and available for the world to see. But prosecutors’ decisions are largely shielded from view. 3/
As a result, judges have often been blamed for sentencing inequality that was actually caused by prosecutors’ decisions. Here’s one high quality study about racial disparity: papers.ssrn.com/sol3/papers.cf…
Make no mistake—if you get rid of judicial sentencing discretion, you will not have removed discretion from the sentencing system. You will have just given more sentencing discretion to prosecutors. 5/
But let’s also take a look at Renato’s claims about how unequal the sentences are now & how appellate courts don’t reverse unreasonable sentences. That simply isn’t true. And it definitely isn’t true in the 4th Circuit, which is where Judge Ellis sits. 6/
Judges in the 4th Circuit give Guidelines sentences more than half of the time. And when they give out lower sentences than the Guidelines recommend, they are *more likely* to do so if the prosecutor asks for it, than they are to do it on their own. 7/
(If you’d like a snap shot of sentencing in the Fourth Circuit, you can check out Table 8 in this report by the US Sentencing Commission. ussc.gov/sites/default/…) 8/
I’m also concerned by Renato’s suggestion that federal judges only give sentences below the Guidelines recommendation in white collar cases because those defendants “look like” the judges. The thinly veiled race and class insinuation is both disturbing and false. /9
Since they were first written, the Federal Sentencing Guidelines were criticized as too harsh when it comes to white collar crimes. Most of those crimes got probation before the Guidelines. But the Commission decided to write rules that were much harsher. /10
Because the Guidelines dramatically increase sentences based on the amount of money involved, many of these cases would result in 20, 30, or 40 more years in prison. Those sentences are so high, that the govt will often not even bother to argue in favor of those sentences. /11
The white collar Guidelines are such an unmitigated disaster that groups have been working for years to try and fix them. But those sorts of changes take time. /12
Look—there is plenty to criticize about both the sentence that Ellis selected and the justification he gave for that sentence. But the idea that we ought to use it as a reason to remove judicial discretion is so outrageous that it should be laughable. /13
Unfortunately—as Renato (a former federal prosecutor) knows—bad sentencing cases make for atrocious sentencing law. The white collar Guidelines are too harsh in most cases. And judges need discretion. /13
TL;DR: Don’t let prosecutors (or former prosecutors) bamboozle you in to thinking that the problem with sentencing in this country is that we give too much power to judges to be merciful. /end
