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Paul Manafort and Systemic Bias

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.

Inapt Analogies

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.”

Structural” Claims

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.

Similarly Situated”

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.

Conclusion

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.


Max Hyams is an undergraduate at Philosophy and Political Science Major at Binghamton University. You can follow him on Twitter @Mxjhymz1

Feature photo by Phil Pasquini / Shutterstock.

41 Comments

  1. So Manafort’s sentence wasn’t enough? Interesting. Now do Hillary Clinton….

      • Mean while, a white Tommy Robinson, receives outrageous jail terms for telling a fib on a mortgage application and reading a BBC article whilst live streaming?

        Surely this is outrageous for white collar crime, or is it because he’s from a blue collar background?

        Or is he a political prisoner from time to time?

        I have a lot more sympathy for him than I do for Meth dealers and gun criminals, regardless of their skin colour.

        This obsession with skin colour and gender must end, because it is destroying the world.

        • Bill Conlon says

          Robinson should have had “Rumpole of the Bailey” (Leo McKern) as his solicitor. I don’t understand British jurisprudence operating without having a constitution.

    • david of Kirkland says

      7.5 years in prison and likely $25 million in fines is so soft…
      Far more likely is that those long sentences are just tyrannies of people who think prison is a one-size-fits-all solution that has yet to do anything to help reduce criminal activities.

  2. “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.”

    It’s worth mentioning that Turner, who apparently had some criminal history, was convicted not of simple “trafficking methamphetamine”, but rather “… convictions on two counts of having a firearm while dealing drugs [the aforementioned meth] …”

    https://www.washingtonpost.com/local/public-safety/judge-laments-40-year-sentence-for-meth-dealer-as-excessive-and-wrong/2018/07/02/f1319b4c-7bd0-11e8-93cc-6d3beccdd7a3_story.html?utm_term=.8d34b630030e

    Two counts. Not one. With firearms, both times. Puts a little different slant on things, doesn’t it.

    And this: “And while the other defendants cooperated, Turner went to trial and testified in a way that jurors did not find credible.”

    So we may reasonably infer that the jury found Turner to be a liar, and no doubt Judge Ellis did, too.

    That’s almost always the problem when liberal commentators, such as those referenced in the article above, are publicly lamenting an “unfair” system where poor people in general, and African Americans in particular, get long prison sentences for what is dishonestly represented as a simple, and single, drug offense.

    Every time you hear the complaint, you can be certain the complainer isn’t telling the whole story.

    • laslaw says

      Actually, possession of a gun doesn’t put a different slant on things at all. This is precisely the ‘count stacking’ that Ellis decried. Moreover, possession isn’t equal to making threats with or using a gun (which are different crimes). But then you actually miscount the article.

      “There was no evidence that Turner carried a gun or was involved in a situation where guns were used. But he visited Ramadan’s house and knew that Ramadan carried a gun and kept weapons there to protect the drugs. Turner also knew that other people involved in the ring were armed. And when Ramadan sold a gun to the undercover detective, it was Turner who retrieved the gun from Ramadan’s car and packaged it with meth for him.”

      Judge Ellis, a conservative, thought the sentence was excessive. He is not a “liberal commentator.” But I do like your conclusion that “Every time you hear a complaint, you can be certain the complainer isn’t telling the whole story.” Yes, you have proven that yourself.

  3. Political leanings and motives aside, one could argue that sound bite reporting, analysis, fill in the blank, is the root cause of this and myriad other current problems. See the preceding article on You Tube channels vs. msm.

  4. ga gamba says

    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.

    Adding, it should be understood that federal court is just one of the 52 courts – 50 states, DC, and federal). States’ laws more often apply because most drug offence arrests are local and not federal matters. To get the feds involved usually the aspects of interstate commerce, wired communications, and/or banking are needed, generally which drug trafficking encompasses.

    It would be interesting to find how many five-gram crack arrests and prosecutions were by the feds in contrast to larger sized power cocaine arrests.

    Lastly, a lot of bad law is created in the heat of the moment when a high-profile person is involved. For crack cocaine, it was the death of basketball star Len Bias – widely tipped to be a Michael Jordan calibre player. The press spread the news it was crack that caused his fatal heart attack. It was actually snorted power cocaine, but once that fake news was put out into the public it spread rapidly and became fact. House Speaker Tip O’Neill, a Democrat from Boston, whose professional basketball team had just drafted Bias two days prior to his death, demanded an immediate overhaul of the current drug laws. A few weeks after his death, which captured the headlines and led for calls “to do something” Congress enacted the 1986 Anti-Drug Abuse Act with its mandatory minimums.

  5. E. Olson says

    Sentencing is one thing, but the worst abuse of power is selective investigation and prosecution. From what I have read, all the Manafort charges were “old crimes” that prosecutors had years ago deemed unworthy of investigation and prosecution until he became lightly involved in the Trump campaign. Only then did they become “important crimes” as they were used by Mueller to leverage Manafort so that he would spin yarns of Russian collusion with Trump. And why were these “old crimes” deemed unworthy of prosecution until then? Almost certainly because every lobbyist and power broker in DC are guilty of the similar crimes, which would likely implicate 75% of Congress and the revolving door officials in the federal bureaucracy, and the government would collapse if laws were impartially and comprehensively applied.

    But why weren’t there any 5AM SWAT team warrant servings for the Podestas, or for any of the officers of the Clinton Foundation? Why are certain criminals such as Hillary Clinton, James Comey, John Brennan, and Andrew McCabe among others able to earn fortunes writing books and/or being CNN talking heads discussing the criminal activities they were involved in? Why aren’t they in jail awaiting trial, while “dangerous” Manafort, Stone, Cohen, Michael Flynn, and George Papadopoulos have their lives ruined and spend time in the slammer for doing nothing except spending a few weeks working with the Trump campaign?

    Forget skin color, the biggest source of bias in government prosecution and sentencing is the party affiliation of the alleged criminal. Criminals associated with Democrats write books and get rich, and criminals associated with Republicans get prosecuted with SWAT raids, jurisdiction pile-ons, denied bail, and get the book thrown at them by corrupt judges. The Democrats that run the permanent bureaucracies of the DOJ, FBI, CIA are making sure that no one will ever want to volunteer their services to any future “outsider” Republican candidate, because any threat at draining the swamp will almost certainly mean they will be persecuted and prosecuted for any real or imagined crimes of their past.

    • David says

      I think you are absolutely correct in your analysis; I personally thought that his lenient sentencing was specifically because these were charges unworthy of pursuing years ago and they were unrelated to the Russian collusion investigation. It also seems that whichever rock you look under- Democrat or Republican- there is corruption. Does anything think that the Clinton’s, their foundation or their cohorts could have undergone this type of examination and remained unscathed?

      Within minutes yesterday of Manafort’s sentencing, NY prosecutors announced new charges against him. Just like sending in the SWAT team to arrest him, this orchestrated attempt to completely destroy Manafort – and Trump by proxy- is vile and malicious. I just hope that the Democrats realize they are setting new precedents in their effort to destroy a sitting president. The circle will come around again but next time it will be pointed at them.

    • Boris says

      “But why weren’t there any 5AM SWAT team warrant servings for the Podestas, or for any of the officers of the Clinton Foundation?”

      Because they didn’t commit any crimes? Or if they did, they didn’t have enough evidence? I’m not sure why you think there’s a bias since Democrats get charged with crimes all the time.

      “Manafort, Stone, Cohen, Michael Flynn, and George Papadopoulos spend time in the slammer for doing nothing”

      Flynn, Cohen and George P. pleaded guilty, Manafort was convicted. Maybe the bias here is you if you think they did “nothing.”

      • E. Olson says

        Boris – all the charges and convictions related to the “Russia” investigation have been process crimes related to lying to investigators of a sham investigation, and all the guilty pleas have been made under threat of financially ruinous legal costs and/or threats to go after family members. These process “crimes” and other crimes for tax evasion or failure to register as a foreign lobbyist would have never been instigated if not for their association with the Trump campaign. In other words, total Banana Republic justice.

        If you really think the Podesta and the Clinton foundation are clean, then I have a bridge in Brooklyn I’d like to sell you for a very good price.

        • david of Kirkland says

          E. Olson – The Russian collusion cases haven’t even begun yet. Manafort is not done, and these “process crimes” are because these are all the other crimes found while investing the Russian influence.

        • Boris says

          “Process” crimes are still crimes. Yes, probably Manafort would not have been investigated for tax fraud and bank fraud. That’s not a bad thing–he should pay for his crimes. He also did some witness tampering, then struck a deal with prosecutors, only to lie to them and get busted again. You think that him not getting away with his crimes makes us a “banana republic”? That’s absurd.

          And let’s not forget that Clinton was impeached for a “process crime.”

          As for Flynn, he struck a deal and it seems likely he got a good one given his foreign lobbying

          I have no idea about the Podestas or the Clinton Foundation. If there were actual evidence, I doubt Trump’s Justice Department would hold back on it.

          • E. Olson says

            Boris – I have no problems with Manafort getting convicted for process crimes or tax evasion, but when all the prosecution efforts are only aimed at one side that is abuse of justice. And there is no Trump DOJ because the whole department except the very top are Obama holdovers – see the transcript of the Lisa Page testimony for evidence.

    • K. Dershem says

      E., your comment seems nakedly partisan to me. I can guarantee that you would call for the prosecution of Manafort et al. if they served in a Democratic administration, just as Donald Trump’s actions and statements would be completely unacceptable to Republicans if they had been attributed to Obama instead. This is the problem with ideology: it’s a breeding ground for hypocrisy, double standards and motivated reasoning. Partisanship is the enemy of fair-mindedness.

      • E. Olson says

        No K – you are the one that is partisan if you can’t see the double-standard when it comes to serious investigation and prosecutions in this case. The only Russian collusion to investigate involves the Clinton Foundation, Clinton campaign, and Obama DOJ, FBI, and CIA, but I will happily eat my hat if Mueller pops up with any indictments against those people.

        Please show me a Republican DOJ or prosecutor that has sends SWAT teams to senior citizen homes to intimidate people with no criminal records, no history of violence, and totally innocent family members at home? And it didn’t just happen in DC, it also happened in Wisconsin by Democrats unhappy that Scott Walker took on the public sector unions.

        • K. Dershem says

          Apparently you subscribe to right-wing conspiracy theories about the Clintons. If there’s actual evidence of wrong-doing, why doesn’t Trump’s DOJ launch an investigation or indict the culprits? Why didn’t the hearings on the Clinton Foundation conducted by the Republican-controlled House reveal anything actionable? Because it’s smoke and mirrors, a form of whataboutery intended to distract from the far more substantial accusations against members of the Trump administration … some of which have resulted in actual convictions. You’ll note that Hillary has not been “locked up” — or even indicted — despite the fact that Trump controls the DOJ. If there was actual evidence that she had committed a crime, I sincerely doubt that this would be the case. It seems likely Trump himself is likely to be prosecuted after he leaves the Presidency, which fits perfectly with the pattern of dishonesty and corruption he’s demonstrated throughout his career. Honest Republicans — those who value principle over partisan loyalty — acknowledge the utter venality of Trump’s character and are rightly concerned about the long-term implications of the GOP’s opportunistic embrace of Trumpism for the party’s future. Attacks on Mueller’s character are part of a desperate strategy to pre-emptively discredit the conclusions of his probe.

          I’m a centrist, not a partisan — I criticize corruption and hypocrisy on both sides of the aisle. You, on the other hand, seem to excuse or dismiss all wrong-doing on the part of Republicans and reserve all of your ire for Democrats, even when the accusations against them lack merit.

          • Bill says

            Because there is no Trump DOJ. Page’s testimony to Congress explains that. Plus, the Obama DOJ on the way out the door granted immunity to everyone under the sun so they can’t go prosecute all those people they know lied and obstructed (as the temporal writings of Agents like Strok point to ex. the IT guy with the cloth who wiped the server)

          • K. Dershem says

            Here’s a test for measuring partisanship: honestly ask yourself how you would have responded if Obama had behaved like Trump while in office.

            https://www.facebook.com/watch/?v=272437063654188

            Partisan Democrats defended Obama for continuing policies of the Bush administration that they had previously criticized (such as drone strikes and aggressive deportation of illegal immigrants). Principled progressives criticized him, just as principled conservatives criticize Trump for his failings. The Founding Fathers warned about factions for a reason: in-group bias is a powerful and democracy-distorting drug.

          • K. Dershem says

            @Bill: Hillary lost. The media’s obsession with the email pseudo-scandal may have cost her the election (further evidence that the MSM is less “left-wing” than is often claimed). As Bernie said so eloquently, people are sick of hearing about the damn emails … except for right-wing conspiracy mongers who want to distract from the misdeeds of the Trump administration. Claiming that there’s “no Trump DOJ” is absurd — Trump has systematically purged numerous non-loyalists. If it were true that President and his appointees can’t manage their own department after two plus years in office, what does that say about their competence?

    • This week’s discussion topic is extremely apt for the times that we live in, especially considering the recent mass shooting in New Zealand and tragedy in Las Vegas. The changing social dynamics of each state, nation, and larger world population, are seemingly in conflict with structures, estates, and fundamental values that created them.
      But upon further review one will find greater eras of political unrest, human violence, pestilence, and environmental unease, by simply looking at the last 100 decades of the near past. One would expect to see a marked rise in these numbers; however, that does not appear to be the case. A recent book by Steven Pinker makes this case and generally posits the notion that human existence bends towards the positive. Moreover, it seems to voice the notion that the unspoken truth, is that the numbers that are used to track these areas of concern, show that they are all on a global decline(Pinkert, 2019; Gibson, 2008).
      With this in mind, we could assume that Pinkers book is referencing that the same basic human tenants that also underpin the leadership-based call to action that DuBois’s conceptualized in his writing about the “Talented Tenth”. At the time, the larger African American population was comprised of people that had been freed of slavery and were slowly trying to find their role, identity, and value, in American society. His idea seems to directly forward the theory that a tenth of the college educated African American population, had the strong capacity to influence the whole of the African American population. On the face of this argument, one only sees his passionate call to action from the people within his ethnic group deemed as the best and the brightest (Pinkert, 2019; Gibson, 2008).
      As mentioned above, at the time of DuBois’s writings the larger African American population was comprised of freed people that and were slowly trying to find their role, identity, and value, in American society. In this frame of reference, DuBois’ “Talented Tenth”, could have been referencing those within the ethnic identity group that were in a financial, emotional, and legal, position to lead the majority. In the first frame of reference, this point of view makes no statement about the capacity of the larger portion of the African American group to gain the same abilities of the smaller (college educated) tenth of the group.
      In another frame of view, this notion could denote an idea that some unknown genetic, mental, or biological factor, that was exclusive to Negro’s, was limiting their ability to fall in line with the most basic rules of freed society. This would directly correlate with his theory main assertion that a tenth of the college educated African American population, had the strong capacity to influence the greater whole of the non-college educated African American population. If this logical conclusion assumes the same assertions, only the “talented Tenth” are unaffected by the unknown genetic, mental, or biological factor.
      DuBois would undoubtedly point present day observers to draw a correlation between the rate of African American’s in jail to this very same conclusion, if he was attempting to look for linked factors. I believe that he would also attribute those same linked factors with the disproportionate amounts of gun violence, mental health issues, and aggression, effecting people inside and outside of the group. I present this frame of reference because DuBois and my name sake, Booker T. Washington, had quite pointed debate on their views of the people they had been counted amongst. They had extremely divergent views on where the Negro would ultimately go and become in a new and radically shifting social context and slave-free US world view (Lott, 2012; Pinkert, 2019; Gibson, 2008).
      The most important difference that I see in the thinking of all three men and their thoughts on the problems of their time, is the differing focus of control of the object being acted upon. Washington and Pinker views could be generally viewed as being as being aligned or distinctly parallel in their line of thought, as it appears that their writings focus on the enduring nature of people’s will toward survival. In regard to DuBois views on the matter, I believe that they could be viewed as an unfortunate placement of the burden of change or progress on the individual. This obviously places my own views on the matter within a mind frame that believes that the focus of control should be placed more squarely on the societal structures that bind the individual, rather than the individual or their ethnic grouping alone. More importantly, this means that the framing of the original question is fundamentally structured in a manner that cannot be answered (Lott, 2012; Pinkert, 2019; Gibson, 2008).
      The “Negro Problem” linguistically denotes that the problem that is referenced belongs to the Negro or that the Negro is the problem. Whereas Washington and Pinkers implication that certain skills, talents, and aptitudes will allow any group to navigate in the given social structure of the time, but the structure ultimately begets the outcome. In my eyes this would seem to ring truer than DuBois writings because the structure will only tolerate the outcomes it has chosen to use as the inputs. This can be taken full circle into our original conversation about leadership and the skills, talents, and aptitudes needed to allow the “Talented Tenth” to navigate in the given social structure of the time and to fix the “Negro Problem”. If we follow the logic that is implied, then the theory of the Talented Tenth can be deconstructed into an argument about born leaders and the genetic lottery (Lott, 2012; Pinkert, 2019; Gibson, 2008).
      It would then hold true that the Talented Tenth, whom are now more like the Talented Seventh, have miserably failed to do their part in solving the “Negro Problem” in the decades since the question was posed. This is the same rhetorical line of thinking that ushered far right-wing links to IQ and genetic flaws as the real basis of the true “Negro Problem”. This abject failure reinforces the idea that only a tenth of the Negro population then had the genetic capacity to function in a structured social society. If the statistical indicators used to show individual ethnic group progression were then used to capture the Negro population then, versus the current iteration of African Americans of today, they would seem to show a negative decline or negative trend.
      Fortunately, the internet may have helped to end this great debate by allowing the nation and the world to better see the confines and the controls that form the structure nations are built on. own imperfections and the wi. It is what some would call the greatest medium for communication and also the greatest tool to act as a lens to view life to ever have been created thus far. This tool has allowed both the Negros, as well as the rest of the world, to finally see the corruption, brutality, and oppression built into our societal structure (Lott, 2012; Pinkert, 2019; Gibson, 2008).

      This is not a new idea and this notion could quickly devolve into a conversation about structural racism. However, this is not a notion that every law or associated part of our structure has been created to oppress Negro’s or whatever minority group is deemed as the problem at the time. I could then point to structural racism’s association with a vast amount of seemingly irrefutable link to laws, actions, and other evidencing factors that denote racist intent. However, I believe that the conversation should be aimed at what some call “Structural Classism” or institutional classism. This is a concept that describes discrimination against a person in a certain class, at an institution or firm (Lott, 2012). In this analogy, America is the firm that is being referenced and the certain “Class” can be any ethnic “Flavor of the Month” or group deemed the “problem” at the time. The ethnic group does not matter, as long as that group can be placed into the lowest socioeconomic role in that society. This lends itself to the “scarcity” component of capitalism and it’s functional need for an economic “Winner and Loser” (Lott, 2012).
      With this concept in mind, if we placed race into a role of lesser intent, a more nuanced understanding of Capitalism and it’s need for scarcity becomes evident. It also become clearer that this same concept underpins our societal structure and inadvertently colors our views. This is because there is an undoubtable and clearly evident truth that Capitalism is a structure that needs a winner and a loser. Moreover, every functioning example of a successful capitalist society has the baked-in concept of “scarcity”, which appears to be an ever-present need that is required to make the mechanisms of the concept work. Simply looking at the etymology or just the definition of the word “Capitalism”, will give a clear indication of its intent, it literally means to take “advantage” of some aspect of a given situation. If this logic is correct then many other negative issues, other than racism, are also structurally constructed in a way to ensure that the concepts “Winners and Loser” are clearly defined (Lott, 2012; Pinkert, 2019; Gibson, 2008).
      Simply put, this is because capitalism (and its socioeconomic predecessors) needed a “Negro Problem”, because it needs a “Economic Loser” to contrast its “Economic Winner”. Prior to the “Negro Problem” it was a “Jew Problem”, prior to that it was a “Chinaman Problem”, Prior to that it was an “Mexican Problem”, Prior to that it was a “Indian Problem”, and prior to that it was an “Englishman Problem”. The result is that the losers are constantly shifted and morphed into the problem, to shield the winners of the game. As the losers individual group moves forward a new loser is defined (Lott, 2012; Pinkert, 2019; Gibson, 2008).
      Again, this notion contradicts DuBois line of thinking and his argument on the Negro Problem. Ultimately, if viewed from this frame of reference, it is clear to see that DuBois writings suffer from not having the ability to see the construct in which it had to operate. It also fails the people it aims to help, by prescribing actions and responsibilities that should be bound to the structure confining it’s participants versus those operating within it. While I like his thoughts on the value of leadership and a college education, his views on why there is a “Talented Tenth”, are perfect fodder for the false narrative of genetic inferiority. Evidence of this is clearly present in the election of Donald Trump and the rise of extreme left- and right-wing politics. As the Caucasian majority is slowly replaced in terms of buying power and Identity group, another economic winner will rise and a new economic loser will emerge (Lott, 2012; Pinkert, 2019; Gibson, 2008).
      Ultimately, in several hundred years the mixing of cultures and ethnicity will be to a point at which no identity group can clearly be defined. Some have called this the “browning of America”. At this point the true and insidious nature of our socioeconomic structure will choose a variation of the losers that are currently defined. The new winner made up of previous losers, will place all of our socioeconomic fears on the most easily recognizable group left, which will undoubtedly be Caucasians (due to skin color) (Lott, 2012; Pinkert, 2019; Gibson, 2008).
      If this holds true, one could then say that DuBois work is a failed narrative that is constantly used to reinforce the problem or society want to see, which is economic losers pointing to themselves rather than the broken system. If we draw this entire conversation back to the three writes referenced thus far, Pinkers works show that the world is marching forward in a progressively positive manner. It also shows that fixing the major structures that control life has had a positive effect on all major life improvement base indices. In the same vein of thought, Washington’s writings shielded the Negro from undue blame but called for personal responsibility, a prescription good for anyone operating in the Capitalism game. In the case of DuBois and his prescriptions, his works are only as good as the structure they were meant to maintain, as they blame the victim for their failure in a system that so clearly needs a socioeconomic “loser” (Lott, 2012; Pinkert, 2019; Gibson, 2008). As it relates to leadership, DeBoise appears to have been proven wrong and the current use of his works are usually a tired attempt to link poor socioeconomic outcomes to people rather than structures (Lott, 2012; Pinkert, 2019; Gibson, 2008).

      Gibson, R. A. (2008). Booker T. Washington and WEB DuBois: The Problem of Negro Leadership.
      Lott, B. (2012). The social psychology of class and classism. American Psychologist, 67(8), 650.
      Pinker, S. (2019). Enlightenment now: The case for reason, science, humanism, and progress. Penguin Books.

  6. Boris says

    “judicial direction over the range of possible sentences for drug, violence, and property offenses are sharply constrained by mandatory minimums”

    A good point.

    “While compelling on their face, claims of structural bias often amount to no more than hand-waving obscurantism.”

    Oh, you were so close! You identified mandatory minimums as a problem in comparing individual cases, but failed to notice that mandatory minimums are exactly the structural bias that you claim doesn’t exist.

    See here:
    https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2413&context=articles

    “Most of this disparity can be explained by prosecutors’ initial charging decisions,particularly the filing of charges carrying mandatory minimum sentences. Ceteris paribus, the odds of black arrestees facing such a charge are 1.75 times higher than those of white arrestees.”

    Note that they go to great length to consider alternate explanations for the disparity.

    Also, the link to the Sampson and Lauritsen paper is broken.

    • Max Hyams says

      “The structural bias you claim does not exist”
      Read the article, I claim no such thing.

      Also from the Michigan study:

      “Finally, these disparity estimates do not include structural inequality. For example, they do not include the racial disparity in sentences due to black arrestees being more likely to live in federal districts that give higher sentences or be arrested for crimes that are associated with longer sentences.”

      I have seen data that, in these more punitive sentencing districts, non-minority defendants are no less likely to recieve harsh sentences. This is an important factor to consider

      • @Max Hyams

        Indeed.

        In fact, Frederick Turner, who, as you stated, received a 40-year sentence from Judge Ellis, appears to be white.

      • Boris says

        The study that I linked to takes the district differences into account:

        “Black arrestees are also disproportionately concentrated in federal districts that have higher sentences in general. Yet even after we control for these and other prior characteristics, an unexplained black-white sentence disparity of approximately 9 percent remains in our main sample.”

        • Max Hyams says

          Right. In the article I acknowledged the persistence of narrower unexplained disparities after other factors are accounted for. These unexplained gaps can be accounted for by a number of factors, bias among them.

          But the whole point in my discussing the crack-coke disparity is that,often, manifestations of what is referred to as ‘structural discrimination’ are not externally imposed.
          I think one will find that (like with the sentencing disparity) the especially punitive punishments in certain jurisdictions were enacted due to pressure from community members/leaders. So calling this ‘structural bias’ is incredibly misleading and unhelpful.

  7. TheSnark says

    Manafort’s problem is that he is stupid. If you are doing lots shady-to-illegal stuff, which he was, it behooves you to stay “below the radar”. You might work with foreign criminal oligarchs and launder you money through Cyprus, and etc, but that does not get you in national news, and into the sights of the investigators. You DO NOT go and run a national campaign in your home country. That automatically makes you a target.

    Trump is even dumber. He also has done lots of shady-to-illegal stuff, and then he ran for and, much to his surprise, got elected President. Talk about making yourself a prominent target.

    • OleK says

      THIS.

      Re: Manafort – I’m glad he got caught and prosecuted for SOMETHING. I’m really bothered by his Ukrainian government interference. But regarding sentencing here, the article is right on. Need to compare apples to apples.

    • david of Kirkland says

      The Trump and Kushner families will rue that day, indeed, as the state and city will have plenty of charges against them as they review their long lives of financial shenanigans.

      • Bill says

        You know, I hope you’re right. And then I hope the hold overs from the Trump DOJ in 2023/2024 impose the same “fear of prosecution” on the families and friends of the Dem pols running for office.

        I don’t mean this in a partisan attack — i’m serious. Imagine the Presidential elections in 2028 after that sort of a blood bath where the DOJ of the prior administration gets to run roughshod over the family/friends/acquaintances and there are bounties for leakers of decades old tapes or manufacturers of decades old, unprovable stories! FINALLY we’ll see politicians of the character of Buddha or Jesus! Of course, congress will be full of Unicorns and Rainbows, we’ll have world peace, and the primary driver of GDP will be video gamers making millions streaming themselves playing games.

        As long as the the Prosecutors in the criminal justice system have unlimited funds there will be miscarriages of justice. Guilty pleas do not mean squat. I’d suggest a vast majority of guilty pleas are equivalent to nuisance settlements because of the financially ruinous result of fighting to prove your innocence. Anyone who has ever been arrested on the many many trumped up “dui” charges would agree. You pay $1000 to an atty, pay $1000 in fines to plea to reckless driving so instead of spending $5000 on your attorney to go to court to “maybe” be found not guilty (and you are excluded from presenting things like breathalyzers that are > 0.000 but < 0.08 in many states when charged with “DUI less safe” instead of “DUI per se”)

  8. Shawn T says

    “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.”

    This troubles me greatly. We seldom see the building and prosecution of federal cases in primetime. Any person reading this would plead guilty to a crime pre-determined by a federal prosecutor – you would have no choice. You are dragged from your home. You are shackled. You are told by prosecutors you are being charged with a dozen crimes in multiple jurisdictions. You can fight for your good name, sure, but you must hire an attorney for each jurisdiction. You will be buried under thousands to millions of pages of documents nobody will actually read (see Mike Flynn). The final stroke is informing you that after you spend millions on a defense (a couple hundred thousand would bury most of us) you could end up in jail for life and they will definitely seize your savings, retirement and maybe your home…or, you just plead guilty to this one little thing, do a light sentence and off you go. Oh, and one more thing, since your finances are co-mingled with your spouse (maybe other family members), they will charge them along with you unless you plead guilty. At that point they have a 95% “conviction” rate.

    This causes problems in other directions too. When President Obama released a bunch of people in the latter part of his second term, a list of those released was published. Most “convictions” were posession while the facts of the case revealed pounds of drugs (not ounces), firearms and other factors of the crime omitted in the conviction. This made it look (statistically) like a bunch of people were in prison for simple posession.

    In watching these cases unfold, I find it hard to tell where actual justice happened. Manafort is a slimy guy, but much like thousands of others in the background of the news all day long. Manafort was tried for some (looks more like justice) and plead to others. The others in this whole process (Flynn, Page, Popodopaulus?,Stone, Cohen) I don’t get the feeling anything more than padded “conviction” rates really occurred. I just hope the great eye of our federal government never falls on me or mine, whether for cause or not.

    • E. Olson says

      I’m just waiting for the day when some Leftist prosecutor decides to go after a political opponent with some process crimes or other victimless crimes of dubious merit, and rather than face financial ruin and and possible jail time for this creative prosecution, the defendant snaps and decides to put a few 45 caliber slugs into the heads of the prosecutor and his/her assistants and family just to make sure the court has a real crime to devote its effort towards. These political prosecutions and the 2nd amendment are going to have a meeting very soon, and it will get very ugly.

        • @K. Derssem

          Did you know that the men who wrote the Second Amendment had recently used guns to overthrow their lawfully constituted government?

          Why do you suppose men like that would write the Second Amendment?

  9. Bill Conlon says

    Isn’t ageism a thing anymore, what happened to Intersectionality?

  10. Joseph Ducreux says

    Manafort’s crime was working for a few months on Donald Trump’s campaign. Had he not done that, he would most likely never have been indicted. This is what you get when you target the man for wrongdoing rather than discover who committed a specific crime.

  11. Chuck Berger says

    Good piece Max. The sentence actually seemed about right to me.

    However, the judge’s comment that Mr Manafort had led an “otherwise blameless life” is mystifying. I don’t know whether that was just a bit of judicial boilerplate, meaning “no previous convictions” – in which case the word choice is unfortunate. On the other hand, if Ellis really believes Manafort’s life was otherwise blameless, he’s an exceptionally poor judge of character, whatever his merits as a judge of law.

  12. hunterson7 says

    Such a great analysis that misses the true disparity. The criminalization of politics.
    The reality of this is driving the structural suppression and censorship on the web, our Universities and elsewhere. We are far down a slippery slope and there is no sign of slowing down.

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