Ghost dope, statutory minimum sentences in drug cases, Judge Jed Rakoff, U.S. Sen. Charles Grassley, chairman of the Senate Judiciary Committee, and the Des Moines Register editorial

Judge Jed Rakoff, a highly respected federal trial judge, recently took judges to task in the New York Review of Books for staying silent in the face of our large prison populations.* In a similar vein, the Des Moines Register editorial board recently lectured Senator Grassley about sentencing reform and statutory minimums in particular.**

Both pieces suffered from a lack of specific and politically palatable suggestions for revision of the federal criminal law. A cynic might even call them puff pieces written for elites.

As Chairman of the Senate Judiciary Committee, Senator Grassley is not likely to kill statutory minimum sentences in drug cases. It is worth noting that Congress no doubt has the power to enact statutes calling for statutory minimum sentences. But heeding the Rakoff call to arms and filling the void ignored by Rakoff and the Register, I have a practical suggestion for the Senator that does not involve doing away with statutory minimums but addresses the real problem of their overuse.

“Ghost dope” comes from a parade of snitches estimating drug quantity. The jury uses those ghosts to determine whether the drug quantity threshold for a statutory minimum is triggered. The problem, however, is that frequently no actual dope sufficient to trigger the statutory minimum is put into evidence.images (1)

It goes without saying that snitches have a huge incentive to exaggerate. Moreover, many of them are such addicts at the time of the offense that their memories are fried. I could list other problems with ghost dope, but you get the point.

So, to Senator Grassley here is a modest proposal:

With sincere respect, if you believe it unwise to do away with statutory minimums in drug cases or to up the thresholds significantly, please address ghost dope. That is, require the government to put into evidence actual dope, weighing at least the amount necessary to trigger the statutory minimum, that must be attributed to a defendant beyond a reasonable doubt.

RGK

*Rakoff falls on the Herculean side of the role definition spectrum for federal district judges.

**News flash to the Register editorial board: At least on this subject, Senator Grassley is unlikely to give a shit what you think.

10 responses

  1. A couple thoughts on this. On the matter of ghost dope and the lack of evidence [of] actual dope offered, it seems to me that contradiction could be used to impeach the witness asserting the amount. What’s the success rate of that?

    On the matter of exaggeration, keep in mind, too, that many of them are such addicts that it takes increasingly more than the “usual” amount to achieve satisfaction. That can lead to what objectively would seem exaggeration, while the addict witness thinks he’s reasonably close to the mark.

    On the larger matter, count me as one of those throwbacks who takes a dim view of drugs and their pushers, but there’s a principle here that addresses the courts and minimum sentencing laws. The Constitution prohibits cruel and unusual punishment, but what defines that evolves with society: we no longer whip people or put them in stocks, for instance. There’s even a move afoot to do away with capital punishment because we can’t do it humanely enough. Today, it appears society is moving more and more to disagreement with my august self on drug punishments, thus, it seems to me that, regardless of whether minimum sentencing as a principle is good or bad, a case could be made that the present level of “minimum” would be cruel and unusual in many cases. Or has that been tried, and the Supremes demurred?

    The other point relating to this is Rakoff’s beef about too many district judges being too silent on the matter. One judge can’t sweep the stables clean, but if lots of judges ruled on cruel and unusual, it seems to me the higher courts would need to revisit the matter, too, and the thing would force an open national dialog on the matter that would force Congress to listen/give them cover to act. Of course, it would be better if the judges so acting weren’t diluted across the nation but instead were concentrated in on Circuit. And then in another. You guys are allowed to talk among yourselves about substantive things as well as deflategate.

    Eric Hines

  2. E,

    You ask:

    On the matter of ghost dope and the lack of evidence [of] actual dope offered, it seems to me that contradiction could be used to impeach the witness asserting the amount. What’s the success rate of that?

    The rate of success is low. That is because the government offers so many snitches saying the defendant was responsible for more than the statutory threshold. This is true even when the estimates vary wildly. Juries are, in a sense, overwhelmed by the number of snitches rather than the quality of their testimony.

    All the best.

    RGK

  3. It is possible that Senator Grassley might consider your proposal. I think he would be offended by the use of such evidence.

  4. jsneff,

    I think so too. But you would know much better than me.

    Thanks for your engagement.

    All the best.

    RGK

  5. Your Honor, a question: Why is it not within the discretion of the trial judge to rule on the admissibility of estimates of the quantity of drugs by those who receive a benefit in exchange for testimony — and to rule them inadmissible?

    Or, to put it differently, assuming it not within your discretion, what are the judicial precedents you are asking Congress to overturn by legislative action? Or is this simply a proposal to adjust the Federal Rules of Evidence?

    (p.s. I have only a poor lay understanding of the rules of evidence.)

  6. John,

    The law is clear that snitches should be allowed to offer estimates so long as they aren’t brain dead or high.

    My proposal would not adjust the Federal Rules of Evidence. It would be enacted by statute. Understanding that I don’t pretend to be a bill drafter, it might read something like this:

    A judge is required to impose the statutory minimum sentence called for by this chapter only when the evidence presented at trial included an amount of the actual controlled substance alleged in the indictment or information sufficient to meet or exceed the quantity necessary to trigger the statutory minimum sentence provided that when such evidence is not presented the judge may nevertheless impose any sentence that is warranted under the penalty statute for the offense of conviction, the Sentencing Guidelines and the statutory goals of sentencing found at 18 U.S.C. section 3553(a).

    All the best.

    RGK

  7. Your Honor, I’m a little confused. It sounds like you are saying that estimates of drug quantities from those who receive a benefit for their testimony should be admissible to a jury (or other finder of fact) for purposes of determining guilt, but not admissible to a judge for purposes of determining sentencing?

    That would seem to be bit of a peculiar distinction. If it’s bad enough to be untrustworthy for sentencing, why is it good enough for a jury’s determination of guilt?

    (Also, your response of “It would be enacted by statute” leaves me to ask: aren’t public laws that change the Federal Rules of Evidence statutes? In any event, they are under Congress’ control, right?)

    Thanks.

  8. John,

    I am sorry that I confused you. I did not take a position about what “should” be admissible. I was trying to tell you what the precedents tell me. If the evidence is admissible for guilt purposes, I agree that it should be considered at the time of sentencing. Finally, the various Federal Rules like the Federal Rules of Evidence are promulgated by the Supreme Court but Congress can “veto” changes, although it seldom does.

    All the best.

    RGK

  9. I like this idea. It certainly would address one of the more offensive (at least in my opinion) of “sting” operations put on by the ATF. Typically works as follows. ATF agent finds a snitch and asks him if the snitch can introduce the ATF agent to a group of bad guys willing to rob a stash house. When introduced, the agent tells the group that he is a disgruntled drug smuggler that wants someone to rob a load that will be coming to town in a week. Meets with the group several times and instructs them that there will be at least 20 kilos of cocaine in the house (bad guys are often lost as to what to do with the drugs, asking the agent for advice). Agent also tells the group to bring as many high-powered guns as possible (usually one or two handguns). At a staging area they are all arrested and eventually charged with conspiracy to posses cocaine with intent to distribute along with other counts.

    While the proposal would not directly address the sentencing guideline manipulation, it would at least do away with the mandatory minimum that ties the district judge’s hands (safety valve is not an option because of the gun). The drug calculations (both the statutory minimum and the guidelines) trump the robbery calculations. And that’s what really should be addressed–it’s a simple robbery case where the object of the robbery is totally controlled by the government in an effort to increase the sentence.

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