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By Nancy Gertner

I was on the federal bench for 17 years before I retired in 2011 to teach, write and lecture about sentencing. The sentencing of Paul Manafort surprised me. I know how difficult the job of judging is; I am reluctant to second guess another judge’s decision as the public and pundits do. The judge sees the defendant, hears the evidence, evaluates the confidential presentence report. We do not. And since I am a critic of sentencing in U.S. courts for being overly punitive, for disproportionately impacting communities of color, I am loath to challenge any judge for being lenient. Still, I was taken aback Thursday by Manafort’s sentence to 47 months in prison by U.S. District Court Judge T.S. Ellis III for cheating on his taxes and for bank fraud.

It was not a shock that Ellis refused to sentence Manafort according to the federal sentencing guideline range of 19 to 24 years. The fact is that the guidelines sentence here would have made no sense. The original impetus for increasing the penalties for white-collar offenders in the U.S. Sentencing Commission’s guidelines issued in the 1980s was egalitarian — to treat someone who robs a bank by using a pen the same as someone who robs it with a gun. But the implementation was absurd. The sentencing “score” here for Manafort’s crimes was the equivalent of the scores for “air piracy not resulting in death,” “selling or buying children for use in the production of pornography,” or “tampering with the public water system.”

That Ellis would go lower than the guideline range was clear; the question was how much. Manafort’s age mattered. The same amount of time has a different resonance for a 69-year-old than for a younger man. In fact, special counsel Robert S. Mueller III did not suggest a specific sentence. He did only what was required — compute the guideline score, based on the offenses — and left the ultimate decision up to the judge.

But Manafort’s sentence, just short of four years, was incongruous. That’s the kind of sentence given to a cooperating witness, such as Michael Cohen, President Trump’s onetime personal lawyer. Yet Manafort had not cooperated; just the opposite. He had feigned cooperation, all the while continuing to lie about what he was doing, according to prosecutors. (Of course, only in the United States, unlike most Western countries, is four years a short sentence.)

In no reported white-collar cases where Ellis’s decisions were appealed did he vary from the guideline range to this marked degree. And while the judge emphasized that Manafort had led an “otherwise blameless life,” that’s the case with most white-collar defendants. Consider Kenneth Lay of Enron infamy, who was a major philanthropist in Houston all the while defrauding the public.

To the extent that the Manafort case was different from run-of-the-mill white-collar cases, those differences were not mitigating. This was not a crime of necessity, to save a dying business, or of hardship, to deal with an ill relative or some other emergency. This was about greed. It was not a momentary lapse of judgment; it took place over an extended period.

Ellis regularly tells defendants life is about making choices and living with the consequences, especially, those in the court system know, when he is rejecting a poor defendant’s arguments about addiction or a gambling compulsion or an abusive childhood. He praises defendants who take responsibility for their actions and show remorse. Significantly, Manafort did neither. It was as if Ellis were bending over backward to show that this was an “ordinary” crime, not within the special counsel’s purview. But the Manafort case was hardly ordinary.

Where does this leave U.S. District Judge Amy Berman Jackson? On Wednesday in Washington, she will sentence Manafort for conspiracy, money laundering, false statements, witness tampering and violations of the Foreign Agents Registration Act.

Her job is not at all to make up for Ellis’s sentence, any more than Ellis should have tried to compensate for what she was likely to do. Jackson may well take into account what Ellis found about Manafort’s background and character — what did he see in Manafort that she may not have seen?

But Jackson’s role is different — to put Ellis’s conclusions in the context of what she has seen and found, to consider Manafort’s admitted pattern of criminality from 2005 to 2018, violations even when Manafort was the chairman of the Trump campaign and, worse, even while he was on pretrial release. She has a different case, different circumstances and may well draw different conclusions.

One thing is clear: There are no Democratic or Republican sentences here, only two judges doing the best they can with the facts they see.