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.
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.
*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.