Ghost Dope Strikes Again

A little while back I mentioned the concept of "ghost dope" in federal criminal cases, which is the relevant conduct that the Government tries to load on a defendant during sentencing.  I made a passing reference to the fact that evidence about ghost dope doesn't need to be presented to a jury (or, in fact, the judge in the case I was talking about) and can even be rejected by a jury.  A recent decision from the DC Circuit brings that part of the phenomenon into stark relief.

Doug Berman has the basics:

Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

In spite of the jury's verdict, the district court took all of that acquitted conduct into consideration at sentencing, imposing a 225-month sentence, near the statutory maximum for the single offense for which he was convicted.  Berman argues that recent Supreme Court decisions imperil the ability of judges to do just that - consider acquitted conduct at sentencing.  Over at The Volokh Conspiracy, Paul Cassell (himself a former district court judge) argues differently, that what happened to Ball is perfectly OK under existing law.

In terms of what the law is, I'm afraid Cassell is right.  Ball was convicted of a charge that carried a sentence of anywhere from zero to 20 years in prison.  Sentencing law (federal in particular, but most states work the same way so far as I know) is designed around providing the judge with all the information he could possibly want when making a decision about what sentence to impose.  As it exists now, it's hard to argue that some facts should be off limits because a jury failed to find they existed beyond a reasonable doubt, a higher standard than applies at sentencing.

However, in terms of what the law should be, Berman is on the right track.  Ask 10 people on the street if you could be sentenced to a longer prison term based on stuff a jury said you didn't do and most, if not all of them (assuming there were no lawyers in the sample), would say no.  It goes against something very fundamental to our criminal justice system to just ignore what the jury finds and move along.

The problem here is largely attributable to one person - Ruth Bader Ginsburg.  In 2005, the Supreme Court decided that the Sentencing Guidelines - mandatory at the time - violated the Sixth Amendment right to a jury trial because they forced judges to increase sentences based on facts found by the judge.  That was a 5-4 decision.  In the second half of that opinion - also a 5-4 opinion - the court remedied the problem by making the Guidelines advisory, rather than requiring the Government to prove all the sentencing facts beyond a reasonable doubt.  

Why blame Ginsburg?  Because she was the only justice in the majority in both decisions.  Not only that, she didn't write a separate opinion explaining her position.  As a result, we're left with a system designed by people who didn't think there was a problem with the system in the first place.  That's not a recipe for success, or at least one that makes sense to the general public and, more importantly, individual defendants.

I'll be the first one to admit that the legal system is complex enough that "lay people are confused by that" is not a good reason to do away with something.  On the other hand, when most of the public has a gut feeling that something is "wrong" in a moral sense with the way the law operates, it might be time to reconsider how its done.

UPDATE: Will Baude, also writing at Volokh, has a different angle on this case:

If appellate courts affirm a long sentence only because of the judge-found facts, then they are essentially creating a new common-law maximum sentence; they’re implying that a 19-year sentence for simple possession would be unreasonable, but that sentence for a massive conspiracy would be reasonable.

That means that there’s a maximum sentence imposed on the district judge from above, unless the judge finds a fact that justifies a higher sentence. This kind of imposition, Apprendi and Blakely and Booker said, was unconstitutional. It’s not the district judge’s decision to issue a long sentence that’s the problem; it’s the requirement that the judge justify that sentence using judge-found facts.

 That comes from a concurrence by Scalia and, while Baude is correct that the Supreme Court has not rejected Scalia's take, neither has it adopted it in a majority opinion. It's certainly an argument worth making, but it isn't a clear winner.