As we navigate the world, we attempt to understand the structures that surround us. And often, because we struggle with complexity and uncertainty, our putative knowledge comes packaged in neat and tidy descriptions of societal phenomena, invoked with a high degree of epistemic confidence. Rather than indulging explanations rife with qualifiers and disclaimers—for example, “System X is Y in areas C, B and Q but not in D and F”—we defer to absolute, uncompromising narratives that allow for the staking of moral high ground. In order to sustain these narratives—and, by extension, our moral certainty—singular cases are adduced as definitive proof of system-wide descriptions, inapt analogies are drawn, and relevant/countervailing facts are elided. In discussions about racism in the U.S. criminal justice system, the dynamics are no different.
The 47-month sentence received by Paul Manafort, former campaign chairman for President Trump, has provided fodder for bias theorists. According to their account, the U.S. criminal justice system has two-tiers: one for those with white collars and white skin and another for those with blue collars (or none at all) and dark skin. And so, because he falls into the former category, Manafort received a slap on the wrist. Efforts to rein in punitive measures are long overdue. However, in their characterization of the justice system’s inherent racism—which implicate not only ‘structural’ elements, but individual actors (e.g.: judges and prosecutors)—critics are overreaching; they are ignoring relevant distinctions and evidence that militates against their claims.
In the aftermath of Manafort’s sentencing, a wave of commentary emerged, converging on a particular perspective: Manafort had received an indulgence because of his background and his proximity to power. Many pundits drew comparisons to previous cases over which District Court Judge T.S. Ellis had presided in which black men received longer sentences for lesser offenses. Such critics claim that Ellis, a Reagan appointee, was able to see himself in Manafort’s shoes but, because he could not forge a similar connection with black defendants, he callously doled out swingeing punishments. Such characterizations are inaccurate, counterproductive, and unfair.
A number of commentators have pointed to the case of Frederick Turner, who received a sentence of 40 years for trafficking methamphetamine, as decisive evidence of Ellis’s alleged bias and double-standards. However, at both state and federal levels, judicial direction over the range of possible sentences for drug, violence, and property offenses are sharply constrained by mandatory minimums, which prohibit judges from issuing sentences below legislatively imposed limits (which vary with the presence of aggravating factors such as prior offenses or possession of a firearm). In Turner’s case, Ellis had no choice but to issue the 40-year sentence.
Like judges across the ideological spectrum, Ellis chafes at the curtailment of the judicial prerogative and the outrageous results it produces. He has criticized Congress for these shortsighted statutes, the product of an over-corrective response to the crime waves of the 1970s and ‘80s. Writing to Chuck Grassley, former chairman of the Judiciary Committee, Ellis excoriated the practice of “charge stacking,” whereby prosecutors, drawing from a diverse menu of options in the penal code, threaten defendants with multiple consecutive offenses if they reject guilty pleas. He specifically referenced the case of D’Andre Bynum, who faced 32 years for armed robbery despite having no criminal record. Furthermore, when Lamont Gaines was faced with an 82-year sentence for armed robbery, Ellis “recruited a high-powered law firm to scour the law in search of some way to avoid imposing what is effectively a life sentence.” Gaines and Bynum are both black, which suggests that Ellis’s attitude to sentencing is motivated by concern for justice and not racial bias.
For most white-collar offenses—like the five counts of tax fraud, two counts of bank fraud, and the failure to report a foreign bank account of which Manafort was convicted—Judges have significantly more discretion. While the advisory Federal Sentencing Guidelines recommended 19 to 24 years for Manafort, Ellis was statutorily obligated to consider the outcomes of similarly situated defendants in his jurisdiction. As attorney Ken White has explained in an article for the Atlantic:
Fraud cases in Ellis’s district yielded an average sentence of 36 months, versus 66 months for firearms charges and 84 months for drug charges, all higher than the national average. Ellis announced that he was sentencing Manafort below the recommended guideline range because that range was far above what defendants received in similar cases… Manafort’s case was arguably much more serious than others, but there’s no question that his sentencing range was atypically high for a white-collar defendant.
More compelling claims center on other white-collar defendants who have come before Ellis and received harsher sentences. In 2009, former Louisiana Congressman William “Dollar Bill” Jefferson was convicted of 11 charges (ranging from RICO violations and bribery to wire fraud) and sentenced to 13 years. Jefferson had abused his office, extracting bribes from West African governments and championing policy proposals favorable to their interests. Even though the federal guidelines recommended a sentence of between 27 and 33 years—and a Supreme Court ruling forced Ellis to vacate many of Jefferson’s charges (allowing him to leave prison in 2017 after five years)—the similarities to Manafort’s extensive lobbying for oligarchs and dictators like Ferdinand Marcos and Viktor Yanukovych are striking. So why the discrepancy?
Numerous relevant distinctions abound, none of which are obviously tethered to racial bias. Beyond the fact that Jefferson and Manafort faced different charges (both in quantity and quality), on March 13 Manafort was sentenced for conspiracy and witness tampering, bringing his total prison term to seven and a half years. Ellis surely took this possibility into consideration, and Manafort has since been indicted by the Manhattan DA on 16 additional felony counts. Moreover, the focus on Manafort’s unseemly activities abroad is misplaced. Special Counsel Robert Mueller’s remit is restricted to examining accusations of collusion with the Russians during the 2016 election (and perhaps unrelated crimes incidentally discovered during this process). For that reason, Manafort’s foreign lobbying fell outside of the “Relevant Conduct” under prosecutor’s consideration. This narrow focus is likely what led Ellis to issue a self-justifying—and demonstrably false—statement that Manafort had lived “an otherwise blameless life.”
If they acknowledge the weight of evidence presented above, bias theorizers tend to pivot away from analyzing individual actors, focusing instead on structures that implicitly entrench racial disparities. The fact that only certain offenses (for example, those relating to drugs, violence, or property) demand mandatory minimums reflects not classism—or assessments of the threat to public safety that different types of defendants pose—but rather racial bias. While compelling on their face, claims of structural bias often amount to no more than hand-waving obscurantism.
Consider the infamous crack-versus-cocaine sentencing disparity. Until this was corrected by the Fair Sentencing Act in 2010, individuals caught with five grams of crack received mandatory-minimum sentences in federal court, whereas those found to be in possession of cocaine received a comparable sentence only if they are caught with 500 grams. According to today’s activists, this clearly reflected racial bias, given the differing composition of the drug using population. But this narrative relies on dishonest historical revisionism. The nature of the crack trade (for example, it is derived from a powder cocaine concentrate, it is cheap, and it produces potent, short-lived highs) render it less conducive to the rigid vertical hierarchies characteristic of other drug markets. This produced constant turf wars between DIY producers and distributors. Due to the high rates of violence and addiction that crack dealers brought to inner city neighborhoods, black residents and community leaders clamored for action. In fact, many saw the government’s failure to extirpate crack from black communities as evidence of malign neglect. This culminated in the majority of the congressional black caucus voting for the 1986 federal Anti-Drug Abuse Act, which entrenched the disparity into law.
Michael Javen Fortner, author of The Black Silent Majority, lucidly articulates why this history is overlooked: “If you think that everything can be explained by white backlash, if you think the white racial order is somehow omnipresent and all-powerful, and is always trying to re-establish itself, then you hate what I do.”
Finally, the meth sentencing disparity (which is still on the books today) should sound the death-knell for white-cabal theorists like Michelle Alexander, author of The New Jim Crow. As Heather Mac Donald explains:
[F]ive grams of meth net you a mandatory minimum five-year sentence. In 2006, the 5,391 sentenced federal meth defendants (nearly as many as the crack defendants) were 54 percent white, 39 percent Hispanic, and 2 percent black. But no one calls the federal meth laws anti-Hispanic or anti-white.
Extrapolating sweeping explanatory trends from single cases is unwise. Brock Turner’s notoriously lenient sentence for sexual assault does not indicate a racial sentencing trend any more than examples of leniency involving black males do. And when bias theorists do cite empirical evidence, the studies are often plagued by shoddy methodologies and other significant limitations. For instance, a 2017 U.S. Sentencing Commission report on racial disparities concluded that: “Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders” [italics mine]. However, endnote 57 in the appendix reads: “the offense types (or categories) used in this analysis are broad in order to ensure a sufficient number of cases. The seriousness of the several crimes varies within the offense type categories as does the demographic characteristics of the offenders convicted of those crimes.” Needless to say, there is a universe of different sentencing ranges within each category (including violence, sex, property, drug, and so on). This limitation should temper the confidence of those eager to claim the study is definitive.
More thorough analyses—while generally mixed— have found that, after relevant variables are controlled for, racial gaps across all tiers of the criminal justice system narrow significantly. Later studies, drawing from a more extensive well of data, similarly find small, but non-negligible, “unwarranted disparities.” While it is likely that race, to some degree, contributes to these unexplained disparities, so too might other factors, less tangible and readily controlled for in the data (repealing mandatory minimums might compound this situation by augmenting judicial discretion, fueling suspicions of biased treatment).
Sampson and Lauritsen (1997) present a more sound argument, finding that disparities result primarily from social forces that “ecologically concentrate race with poverty.” Again, the ugly stain that is the historical subjugation of blacks is implicated, but this is far-removed from the bold claims activists make today.
Proffering individual/extreme cases like those of Manafort or Turner and weaving them into broad system-wide narratives is not only epistemologically unsound, it is also needlessly incendiary and tactically ill advised. Bringing race to the forefront of criminal justice discourse, and framing issues primarily along ethnic lines, brings us no closer to realizing reform. When analyzing and seeking to understand complex problems, we should remain wary of the individual case, and of those who claim to know far more than what the corpus of evidence can indicate.
Brutus (a pseudonym) is a student at the University of California Los Angeles School of Law.
Feature photo by Phil Pasquini / Shutterstock.
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