Renato Mariotti is a former federal prosecutor and host of the “On Topic” podcast.

The 47-month sentence imposed on former Trump campaign chairman Paul Manafort has drawn widespread criticism that Judge T.S. Ellis’s decision to give Manafort a sentence far below the 19.5 to 24.5-year guidelines range was motivated by Manafort’s race and class or by partisan bias. In fact, his flawed decision is a consequence of the vast discretion given to federal judges to issue sentences without real fear of being overturned.

What you might not know is that federal law permitted Judge Ellis to give Manafort a sentence of anywhere between 0 to 80 years in prison. And as long as Ellis did not go above the 24.5-year maximum called for by the sentencing guidelines, an appellate court would almost certainly not reverse his sentence, given the very deferential standard of review.


If this sounds bizarre to you, you’re not alone. As the federal sentencing commission recently found, “the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.” Anyone who has practiced federal criminal law knows that a defendant’s sentence depends largely on which judge they draw, and the data backs that up. For example, in my home city of Chicago, there is a spread of 49.5 percent between the amount that the harshest and lightest sentencing judge deviates from the federal sentencing guidelines. That means a defendant could receive many more or less years in prison depending on which judge the case is assigned to.

The fundamental unfairness of these sentencing disparities is one factor that led to the creation of the federal sentencing guidelines, which went into effect in 1984. Despite being called “guidelines,” at the time of their creation they were mandatory. During that era of federal sentencing, Judge Ellis would have been forced to give Manafort a sentence between 19.5 and 24.5 years, with very limited exceptions.

That changed in 2005 when the Supreme Court decided United States v. Booker, a landmark decision that found the limits placed on judges by the sentencing guidelines to be unconstitutional. Since that time, the guidelines have been advisory—merely one of many broad factors a judge must consider before rendering a sentence.

Despite its serious flaws, the current system is superior to the mandatory guidelines approach. The guidelines are a complicated mechanical formula that takes into account some but not all factors that a judge should consider when sentencing. No mechanical formula can capture everything about a person or a crime. That’s why we have humans with years of legal experience perform this important function—not machines.

That said, more should be done to reduce the unfairness caused by the unbounded discretion afforded to federal judges. In my experience, judges relate to defendants like Manafort, who look like them and often come from the same privileged background many of them do, which can result in lower sentences for white-collar defendants. Of course, there are other important factors that create sentencing disparities. For example, mandatory minimum sentences force judges to give harsh sentences for narcotics crimes even if they otherwise believe a lesser sentence is warranted. Most white-collar crimes do not have mandatory minimum sentences.

In fact, Judge Ellis cited the sentences imposed in other white-collar cases as a factor he considered when sentencing Manafort. Judges are required to consider sentences imposed in similar cases, and Judge Ellis is right that white collar defendants usually receive sentences well below the guidelines range, albeit rarely this far below them. Nonetheless, this factor combined with the broad discretion given to judges can magnify bias that gives unfair breaks to privileged defendants.

But this does not fully explain the sentence imposed by Judge Ellis. Judge Amy Berman Jackson, who will sentence Manafort in a separate case next week, will almost certainly take a tougher approach with him. Indeed, Ellis made a number of statements about Manafort that cannot be defended, such as his false claim that Manafort led an “otherwise blameless life.” There is no question that Manafort was far from “blameless.” For many years, he committed just about every white-collar crime imaginable, gaining millions of dollars for himself in the process. Once he was caught, he thumbed his nose at prosecutors, violated conditions of release, and engaged in witness tampering. He has no respect for the law whatsoever.

Even more concerning are statements Ellis made that caused many to question whether he exhibited partisan political bias, or a particular bias against special counsel Robert Mueller and his team. Ellis previously said that “even a blind person” can see that Mueller is prosecuting Manafort to pursue his “true target,” President Trump. He claimed that prosecutors “don’t really care about Mr. Manafort’s bank fraud.”

During Manafort’s sentencing, Ellis made the bizarre statement that Manafort was “not before this court for anything having to do with collusion with the Russian government to influence this election.” That was a highly unusual statement for a judge to make, given that this issue was irrelevant to the matter before him. The obvious implication is that Ellis was reacting to a talking point made by Trump’s supporters.

Although I publicly defended Judge Ellis during the trial—for the most part, he did an admirable job presiding over the trial—I cannot defend these comments, which undermine public trust in the legal system. It is far less likely that these comments would have been made if appellate courts were less deferential to trial judges when reviewing sentences. Judges are always much more careful when they know the Court of Appeals will pick apart their reasoning and potentially overturn their decision.

While some level of sentencing disparities are an inevitable result of judicial discretion, poorly reasoned sentences—and outright unreasonable sentences like the one given to Manafort by Judge Ellis—are the result of a system where judges are given unfettered discretion and their sentencing decisions are not reviewed as carefully as they should be. If federal courts of appeal will not more carefully scrutinize sentences, then perhaps Congress should pass a law requiring that they do so.

