The Paul Manafort sentence and the notorious and diabolical federal sentencing guidelines

"While the products of the Sentencing Commission's labors have been given the modest name 'Guidelines,' see 28 U.S.C. 994(a)(1) (1982 ed., Supp. IV); United States Sentencing Commission Guidelines Manual (June 15, 1988), they have the force and effect of laws, prescribing the sentences criminal defendants are to receive. A judge who disregards them will be reversed, 18 U.S.C. 3742 (1982 ed., Supp. IV). I dissent from today's decision because I can find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws."

As some sort of smiling rationale is always given for a new law or governmental action, the sentencing guidelines were promoted as providing certainty and fairness in sentencing and avoiding unwarranted disparities among defendants with similar records found guilty of similar offenses.  Never mind that the differences between individual human beings, their backgrounds, and behavior are basically unlimited and disparate in reality.  The existence of reality was not part of the new game, and "disparity" was claimed to be a bad thing.  Asserted to be just as bad was the difference between federal judges and the sentences they imposed.  Surprisingly, one of the original members of the sentencing commission, Paul Robinson, objected to what was created as a final product, and Judge Scalia quoted him–

" 'Under the guidelines, the judge could give the same sentence for abusive sexual contact that puts the child in fear as for unlawfully entering or remaining in the United States. Similarly, the guidelines permit equivalent sentences for the following pairs of offenses: drug trafficking and a violation of the Wild Free-Roaming Horses and Burros Act; arson with a destructive device and failure to surrender a cancelled naturalization certificate; operation of a common carrier under the influence of drugs that causes injury and alteration of one motor vehicle identification number; illegal trafficking in explosives and trespass; interference with a flight attendant and unlawful conduct relating to contraband cigarettes; aggravated assault and smuggling $11,000 worth of fish.'  Dissenting View of Commissioner Paul H. Robinson on the Promulgation of the Sentencing Guidelines by the United States Sentencing Commission 6-7 (May 1, 1987) (citations omitted)".

The point was and is that laws are to be made by Congress, and not from scratch by delegating the power to a type of commission, which Judge Scalia called "a sort of junior-varsity Congress".  This context also raises thoughts about the separation of powers in the structure of the federal government.

Sentencing in federal court became a process of assigning a certain number of points to certain factors, and adding them up and subtracting some to reach a numerical score, and after that looking at a grid and finding the pigeon hole telling you, and the handcuffed judge, what the sentence within the new, smaller range of punishment could be.  If you think that such a process is surreal, it is.  The sentencing scheme with its new commission became a sprawling monster, not only in its text and procedures, but also in its expenditure of time and money and court litigation, which continues to this day.  Here is the current version of the sentencing guidelines manual, in excess of 500 pages, which you can read if your stomach can stand it–

https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2018/GLMFull.pdf

After the guidelines became effective in 1987 and the Mistretta opinion was handed down in 1989, the problems generated by the new system became more and more obvious and acute.  Despite dissatisfaction expressed in the legal community, Congress did nothing, and it took 15 years until 2004 for another case with some substance to be accepted by the Supreme Court for review, called United States vs. Booker, 543 U.S. 220 (2005).   It produced an unusual decision consisting of two separate majority opinions, with each one made up of a different group of five judges, and several dissenting opinions [3].  

One opinion ruled that two sections of the Sentencing Reform Act that made the guidelines mandatory had to be severed and excised from that law because a conflict existed between facts that might be found by a jury through a defendant's Sixth Amendment right to a jury trial, and what could be done under the mandatory aspects of the sentencing guidelines.  Invalidating the two sections made the guidelines effectively advisory, but the "[federal] district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing", and the "courts of appeals review sentencing decisions for unreasonableness" (see pages 246-267, pdf pages 448-469).   The supreme court did not have the intestinal fortitude to strike down the entire sentencing guidelines regime, and instead wrote around the problems, split hairs, and kept the system mostly in place, requiring the trial judge to still consider the "numerous factors that guide sentencing", and a court of appeals can review the judge's sentence and decide whether it is "unreasonable".

Judge Stephen Breyer is the author of that particular majority opinion in the Booker case that kept the guidelines mostly in place; Supreme Court Judge John Paul Stevens wrote the other majority opinion.  One of the original members of the U.S. Sentencing Commission from 1985-1989 was a judge on the federal First Circuit Court of Appeals named Stephen Breyer, who was on that court from 1980-1994.  He was nominated to the U.S. Supreme Court by president Bill Clinton and took his seat on 3 August 1994.

The world is indeed small, for in the Booker case before the supreme court in 2004, two lawyers involved in writing the brief (the written argument) for the Justice Department to support the guidelines were Christopher Wray, now the FBI Director, and Michael Drebeen, who has been in the Solicitor General's office in the Justice Department and who has been working at least part time since 2017 for — you guessed it — special counsel Robert Mueller [4].  In this New York Times newspaper story from 6 June 2017 about Christopher Wray being nominated to be FBI Director, at the beginning of the story is a photograph from February 2004 of three men standing together — James Comey (the Deputy Attorney General), Robert Mueller (FBI Director), and Christopher Wray (Chief of the Criminal Division in the Justice Department) [5].  To slightly modify the immortal words of comedian George Carlin, "It's a small club, and you're not in it".

The growing mutation of the sentencing system continues, with endless quibbling among lawyers in court, judges, and the sentencing commission through litigation over detailed bureaucratic parts of the guidelines attempting to identify and pull under control every conceivable variation of a person, the person's conduct, and different factors that might be considered in a sentence, and assign a number to it, ultimately producing your guideline and criminal history levels.  The sentencing commission has published a selected annotation of 85 supreme court cases from the Mistretta decision in 1989 to one from 2018, with a brief discussion of each opinion [6].

You can now see and understand the real reason for the U.S. Sentencing Commission and the carefully crafted system of assigning numbers to points and designing strict categories to include and control every possible factor about ordering a sentence for a crime.

This system removes the sentencing power and discretion from the courts and judges in the judicial branch and gives them to the prosecuting attorneys in the executive branch, through the Department of Justice and the offices of U.S. Attorneys.  It has been and is a clever and diabolical transfer to the prosecuting authority of one of the most important functions in a criminal justice system:  the sentencing punishment or consequence given to a defendant.

I, the federal prosecutor, will decide what your sentence will be by the offenses I decide to charge you with.  All I have to do is get a guilty verdict from a jury trial or from a trial to the judge if you agree to have a judge alone hear and decide the trial.  Or obtain a guilty plea from you to a charge and on terms that I agree to, whether that guilty plea results from your objective decision about your conduct, or whether you are coerced into pleading guilty by the sheer number of charges with possible sentences I have filed against you, or you plead guilty because you have run out of money and cannot afford  a trial, or I threaten to charge your wife or family members also if you do not plead guilty to what I agree you can plead to.  The judge is so constrained and limited by the sentencing guideline scheme that I am not worried at all about the sentence you will get; I have no downside risk there.

The presentence investigation report (PSI) about Paul Manafort from the federal probation office was filed on 6 March and is not publicly available, as is standard practice.  Manafort's sentencing hearing on 13 March is taking on the aura of a spectacle, boosted by the government's allegation that he violated the terms of his plea agreement, and after the courageous departure downward from the sentencing guidelines by Judge T.S. Ellis III last week.  Whether Judge Ellis's sentence may be the subject of  review by appeal is another dense issue.

Meanwhile, in the pending case of Gen. Michael Flynn (ret.), a status report by the lawyers was filed on 12 March.  It requested that his sentencing hearing be rescheduled–

https://turcopolier.typepad.com/files/michaelflynn_status_report_20190312.pdf

Politicians, the press, and candidates announcing a year before the presidential primaries begin are blathering on clownlike about who has verbally offended whom, which newly invented group should have new "rights", whether someone is cis-gender, whether the president had sexual contact with a floozy pornographic movie performer and whether a legal payment to her to keep it confidential violated campaign finance laws (it did not), and on and on. 

All the while, they are blithely unaware that playing out right in front of their faces is a radical transformation of federal criminal law, consolidating the ultimate governmental power in the branch that executes the police power, while federal judges with a lifetime appointment and all office facilities and perks paid for by taxpayers, dither and refuse to honestly describe and resist what has been happening.  All federal judges except for two.  One, Antonin Scalia, left this world in 2016, but was the only one on the supreme court standing against the slick usurpation of the democratic process and sentencing discretion.  The other one, T.S. Ellis III, is still with us, and he not only understands what the sentencing guidelines really are, but he also assessed a sentence as it used to be done, without the double meaning of 1984.