Paul Manafort should not be sentenced to 20 years in prison

A jury has spoken on Paul Manafort.  He was found guilty, and he should be punished.  But his reported sentencing guideline range of 19.5-24.5 years is a good example of how our criminal justice system has lost its way.

Once, when trials were common, our system was the envy of the world.  Now, trials almost never occur.  (In the 1980s, over 20 percent of cases went to trial while less than 3 percent proceed to trial today).  The reason is simple: defendants who go to trial and lose in today’s system now suffer “the trial penalty,” and receive a much more severe — sometimes decades longer — sentence simply for exercising a fundamental Constitutional right to trial.

Even innocent people plead guilty because of the risk/reward analysis that all defendants consider. The risks of going to trial have become way too high.  You can plead guilty and get probation or go to jail for a manageable amount of time.  But if you go to trial and lose… well, you’ll be crushed.

A jury found Manafort guilty of tax and related offenses, but suggesting that a 20 year sentence is appropriate in this case is just wrong.  Twenty years! Manafort is a 69-year old, first-time offender.  If the judge sentences him to anywhere in that range, he will most likely leave prison in a box.{mosads}

Make no mistake, the sentencing range is that high only because Manafort had the audacity to make the government actually prove its case at a trial.  Does going to trial warrant a sentence 15 years longer than his co-defendant, Rick Gates? Rick Gates hasn’t been sentenced yet, but his sentencing range is around 5 years.  And he will most likely get a sentence much lower than that because of his cooperation.  His lawyers will certainly ask for probation as have numerous other cooperators in the Special Counsel’s cases.

Some will respond that Gates should get less time than Manafort because he is less culpable and decided to cooperate.  That’s of course true.  But that doesn’t mean that Manafort should get 20 years simply because he had the temerity to go to trial.

The truth is that being less culpable becomes a minor factor when the trial penalty comes into play.  There are many examples of the least culpable defendant getting the highest sentence solely because of the trial penalty.  One such victim of the trial penalty was James Olis, a securities fraud defendant who worked at Dynegy Corporation in Houston, Texas. Olis was sentenced to 24 years in prison after trial, while his boss who testified against him received about a year.

Before trial, Olis had been offered 6 months in exchange for pleading guilty and cooperating.  Olis’ lawyer, David Gerger, predicted: “If there’s a 20-year penalty for going to trial, then innocent as well as guilty people will simply decide they have to give up their right to a trial.” He was right. The case was ultimately reversed, and Olis was resentenced to 6 years. Until the reversal, prosecutors in Houston expressly mentioned Olis to any fraud defendant who wouldn’t plead. The line went something like this: “You can plead or risk ending up like Olis.” Prosecutors in every district have their own “Olis line.”

The United States Supreme Court has explained that the right to trial by jury “is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.”

Sadly, though, trials are dying. If we want to breathe life back into what used to be the best justice system in the world, we must eliminate the trial penalty.  Manafort and other defendants who proceed to trial should not receive sentences decades longer than those who plead and cooperate.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.