In addition to many other things he has promised to do on his first day in office, Donald Trump has said he will free Silk Road founder Ross Ulbricht, who is serving a life sentence in federal prison for connecting drug consumers with drug sellers. From a libertarian perspective, it is obvious that no one should go to prison for facilitating peaceful transactions among consenting adults. But Ulbricht’s grossly disproportionate punishment should give pause even to supporters of the war on drugs.
Two weeks before Ulbricht was sentenced, his lawyer sought to dispel the notion that his website, which enabled people around the world to anonymously buy politically disfavored intoxicants with bitcoin via the Tor network, was “a more dangerous version of a traditional drug marketplace.” To the contrary, defense attorney Joshua Dratel said in a letter to U.S. District Judge Katherine Forrest, Silk Road “was in many respects the most responsible such marketplace in history.”
As became clear at the sentencing hearing on May 29, 2015, Forrest was not impressed by that argument. But it was undeniably true that Silk Road offered consumers several important advantages. Those advantages explain why the site, which Ulbricht launched in February 2011 and ran until his arrest in October 2013, achieved the success that attracted the government’s attention.
Silk Road not only protected consumers against the risks of arrest and black-market violence. It also protected them against rip-offs through an escrow system that delayed payment until shipments were received.
In contrast with the potentially lethal uncertainty regarding drug composition that users typically face as a result of prohibition, Silk Road offered some assurance that buyers were getting what they expected. Vendors who received low ratings from customers tended to lose business and risked removal by the site’s administrators, who were keen to maintain the reputation that made Silk Road attractive.
Anonymous forums, which included input from a Spanish physician and drug expert, allowed buyers to exchange information and advice. As researchers such as Tim Bingham and Monica Barratt observed, Silk Road created a stigma-free, supportive community that enabled drug users to learn from each other and obtain psychoactive substances without the hassles, legal hazards, and threats to personal safety associated with buying drugs on the street.
As Forrest saw it, these benefits magnified Ulbricht’s offenses because Silk Road encouraged drug use by making it less dangerous and more convenient. Even if you are sympathetic to that view, a life sentence for a first-time, nonviolent drug offender is hard to fathom, let alone justify. It was far more severe than the sentences imposed on other Silk Road defendants, including people who actually sold drugs, as opposed to assisting those transactions.
The government claimed Ulbricht was not in fact nonviolent. It averred that he commissioned the murders of people who threatened to reveal confidential information that would have disrupted Silk Road. But there was no evidence these alleged schemes were ever carried out: In the government’s telling, Ulbricht was tricked into paying phony assassins (including a corrupt federal drug agent) who promised to make his problems disappear.
More to the point, the charges that resulted in Ulbricht’s life sentence did not include attempted murder for hire, and no such charge was ever presented to the jury, let alone proven in court. Those unproven allegations nevertheless played a crucial role in the sentence that Forrest imposed and in the appeals court decision that upheld it.
Forrest also considered heart-rending testimony from two parents of Silk Road customers who died after consuming drugs. Prior to sentencing, the defense submitted a report from a forensic pathologist who detailed the lack of evidence to support the contention that drugs purchased on Silk Road caused those deaths or four others cited by the government. But Forrest deemed those incidents relevant because she concluded, based on “a preponderance of the evidence,” that “the deaths, in some way, [were] related to Silk Road.”
Forrest likewise ruled that conclusive evidence of causation was not necessary to make the accounts of grieving parents relevant in determining Ulbricht’s sentence, even though he was never charged in connection with these deaths or any others. When the U.S. Court of Appeals for the 2nd Circuit considered the case, Judge Gerald Lynch questioned that decision, suggesting during oral argument that the parents’ testimony “put an extraordinary thumb on the scale that shouldn’t be there” by “creat[ing] an enormous emotional overload” based on “something that’s effectively present in every heroin case”—i.e., the risk of a fatal overdose. “Why does this guy get a life sentence?” Lynch wondered, calling it “quite a leap.”
By the time he wrote the opinion rejecting Ulbricht’s appeal, however, Lynch was satisfied that Forrest had not abused her discretion. “To the extent that the harms of the drug trade were obvious, there was no need to introduce evidence of these particular incidents, let alone to hammer the point home with unavoidably emotional victim impact statements by parents of two of the decedents,” he conceded. “Absent reason to believe that a drug dealer’s methods were unusually reckless, in that they enhanced the risk of death from drugs he sold beyond those already inherent in the trade, we do not think that the fact that the ever-present risk of tragedy came to fruition in a particular instance should enhance those sentences, or that the inability of the government to link a particular dealer’s product to a specific death should mitigate them.”
Still, Lynch said, “we are not persuaded…that the introduction of the evidence in this case was error, although it may have been incautious for the government to insist on presenting it to the district court.” He counted the legal irrelevance of that evidence as a point in the government’s favor, saying there was no reason to think it had factored in the sentence. “Emotionally wrenching as the statements of the decedents’ parents were,” he wrote, “we cannot and do not assume that federal judges are unable to put their sympathies for particular victims to one side and assess the evidence for its rational relationship to the sentencing decision.”
Forrest also seemed to believe that Ulbricht’s libertarian views, to which she repeatedly alluded, were relevant in determining how many years he should serve. As you might expect, she said his moral opposition to drug prohibition “provides no excuse.” But she also thought it was “notable” that “the reasons you started Silk Road were philosophical,” adding, “I don’t know that it is a philosophy left behind.”
To illustrate the alarming implications of that philosophy, Forrest cited “posts which discuss[ed] the laws as the oppressor” and argued that “each transaction is a victory over the oppressor”—an attitude that she deemed “deeply troubling and terribly misguided and also very dangerous.” As the 2nd Circuit saw it, “that discussion was relevant to sentencing” because Ulbricht “appeared to believe that his personal views about the propriety of the drug laws and the paramount role of individual liberty entitled him to violate democratically enacted criminal prohibitions.”
Ulbricht was surely wrong about that, Lynch said: “Reasonable people may and do disagree about the social utility of harsh sentences for the distribution of controlled substances, or even of criminal prohibition of their sale and use at all. It is very possible that, at some future point, we will come to regard these policies as tragic mistakes and adopt less punitive and more effective methods of reducing the incidence and costs of drug use. At this point in our history, however, the democratically elected representatives of the people have opted for a policy of prohibition, backed by severe punishment. That policy results in the routine incarceration of many traffickers for extended periods of time.”
In Forrest’s view, the fact that Ulbricht defied that policy for principled reasons, and not just to make a buck, made him especially dangerous. The 2nd Circuit seemed to concur.
Given these puzzles, it is not surprising that Ulbricht’s punishment provoked bipartisan, trans-ideological criticism. In addition to left-leaning critics of the war on drugs, Ulbricht’s advocates include organizations such as the American Conservative Union, the Cato Institute, and Reason Foundation (which publishes this website), along with Republicans such as Sen. Rand Paul (R–Ky.), Rep. Thomas Massie (R–Ky.), Rep. Warren Davidson (R–Ohio), Vivek Ramaswamy, Turning Point USA founder Charlie Kirk, and the late Ken Starr, a former federal judge, solicitor general, and independent counsel.
Starr’s support for commuting Ulbricht’s sentence was especially striking. As solicitor general in 1990, he had successfully urged the Supreme Court to uphold a life sentence for possessing a pound and a half of cocaine, arguing that it did not amount to “cruel and unusual punishment” under the Eighth Amendment. He said the Michigan legislators who had prescribed that penalty could have “reasonably” concluded that “distribution of drugs is not a victimless crime, but is in fact equivalent to a violent assault both on the users of the drugs and on others who suffer the consequences of their use.”
Starr nevertheless had little trouble perceiving the injustice of Ulbricht’s life sentence for what the government portrayed as a vast drug trafficking operation involving $183 million in sales. “The over-sentencing and unfairness in Ross’s case is an example of how our system sometimes fails to balance justice with mercy,” he said. “I am proud to join the many prominent figures in politics and law who have raised their voices to support clemency for Ross.”
Ulbricht’s most prominent advocate, of course, is Trump, who begins his second term as president today. “He’s already served 11 years,” Trump said at the Libertarian Party convention last May. “We’re going to get him home.” Whatever your view of Trump’s broader agenda, that outcome should be welcomed by anyone who thinks the punishment should fit the crime.
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