Why Trump Should Free Silk Road Founder Ross Ulbricht

Beyond many other things vowed 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 users with drug dealers. From a libertarian perspective, it is obvious that no one should go to jail for facilitating peaceful transactions among consenting adults. But Ulbricht’s grossly disproportionate sentence should give pause even to supporters of the war on drugs.

Two weeks before Ulbricht was sentenced, his lawyer tried to dispel the notion that his website, which allowed people around the world to anonymously buy politically disadvantaged drugs with bitcoin via the Tor network, was “a more dangerous version of a traditional drug marketplace.” On the contrary, defense attorney Joshua Dratel said in a letter to US District Judge Katherine Forrest, Silk Road “was in many respects the most responsible marketplace in history.”

As it became clear by sentencing on May 29, 2015, Forrest was unimpressed with that argument. But it was undeniably true that Silk Road offered consumers several important benefits. These 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 from the risks of arrest and black market violence. It also protected them from rip-offs through an escrow system that delayed payment until shipments were received.

Unlike the potentially lethal uncertainty regarding drug composition that users typically face as a result of bans, Silk Road offered some assurance that buyers were getting what they expected. Sellers who received low ratings from customers tended to lose business and were at risk of being removed by the site’s administrators, who were eager to preserve the reputation that made Silk Road attractive.

Anonymous forums, which included input from a Spanish doctor 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 allowed drug users to learn from each other and obtain psychoactive drugs without the hassles, legal dangers, 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’re sympathetic to that point of view, a life sentence for a first-time, non-violent drug offender is hard to fathom, let alone justify. That was it far more serious than the sentences handed down to other Silk Road defendants, including people who actually sold drugs, as opposed to assisting those transactions.

The government claimed Ulbricht was not actually non-violent. It alleged that he ordered the murders of people who threatened to reveal confidential information that would have disrupted Silk Road. But there was no evidence that these alleged schemes were ever carried out: According to the government’s account, Ulbricht was tricked into paying fake assassins (including a corrupt federal narcotics 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 such a charge was never presented to the jury, let alone proven in court. These unproven allegations nevertheless played a decisive role in the sentence imposed on Forrest and in the Court of Appeal’s decision upholding it.

Forrest also considered heartbreaking testimony from two parents of Silk Road customers who died after taking drugs. Prior to the sentencing, the defense submitted a report from a forensic pathologist who detailed the lack of evidence to support the claim that drugs purchased on Silk Road caused those deaths or four others cited by the government. But Forrest considered those incidents relevant because she concluded, based on “a preponderance of the evidence,” that “the deaths were somehow (related) to Silk Road.”

Forrest also ruled that conclusive evidence of causation was not necessary to make the accounts of grieving parents relevant to determining Ulbricht’s sentence, even though he was never charged in connection with those deaths or others. When the US Court of Appeals for the 2nd Circuit heard the case, Judge Gerald Lynch questioned the decision, suggests during oral argument that the parents’ testimony “put an extraordinary thumb on the scale that shouldn’t be there” by “create(ing) an enormous emotional overload” based on “something that is actually present in every heroin case” – i.e. risk of a fatal overdose. “Why is this guy getting a life sentence?” Lynch marveled, calling it “quite a leap.”

When he wrote opinion In dismissing Ulbricht’s appeal, however, Lynch was adamant 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 drive home the point with inevitably emotional victim impact statements from the parents of two of the deceased,” he admitted. . “Without reason to believe that a drug dealer’s methods were unusually reckless in that they increased the risk of death from drugs he sold beyond those already inherent in the trade, we do not believe that the fact that the ever-present risk for tragedy brought to fruition in a particular case should enhance those sentences, or that the government’s inability to link a particular retailer’s product to a particular death should mitigate them.”

Still, Lynch said, “we are not convinced … that the introduction of the evidence in this case was error, although it may have been imprudent for the government to insist on introducing 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 believe it had factored into the verdict. “Emotionally wrenching as the statements of the deceased’s parents were,” he wrote, “we cannot and do not assume that federal judges are incapable of setting aside their sympathy for particular victims and evaluating the evidence for its rational relationship to sentencing. decision.”

Forrest also seemed to believe that Ulbricht’s libertarian views, which she repeatedly alluded to, were relevant to 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 “weird” that “the reasons you started Silk Road were philosophical,” adding, “I don’t know that it’s a philosophy that’s left behind.”

To illustrate the alarming implications of this philosophy, Forrest cited “posts discussing (ed) the laws as the oppressor” and argued that “every transaction is a victory over the oppressor”—a position she found “deeply troubling and terribly misunderstood and also very dangerous.” As the 2nd Circuit saw it, “this discussion was relevant to sentencing” because Ulbricht “appeared to believe that his personal views about the propriety of drug laws and the paramount role of individual liberty entitled him to violate democratically enacted criminal prohibitions.”

Ulbricht was certainly wrong about that, Lynch said: “Reasonable people can and do disagree about the social utility of harsh sentences for the distribution of controlled substances, or even criminal prohibitions on their sale and use altogether. It is quite possible that on a sooner or later 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. However, historically, the democratically elected representatives of the people have chosen a policy of prohibition, backed by severe penalties This policy results in the routine imprisonment of many traffickers for long periods.

In Forrest’s view, the fact that Ulbricht defied this policy for reasons of principle, and not just to make money, made him particularly dangerous. The 2nd Circuit seemed to agree.

Given these conundrums, it is not surprising that Ulbricht’s sentence provoked bipartisan, trans-ideological critique. In addition to left-wing critics of the war on drugs, Ulbricht’s supporters include organizations such as American Conservative Unionthe The Cato Instituteand Basic 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 overturning Ulbricht’s sentence was particularly striking. As attorney general in 1990, he successfully urged Supreme Court to maintain a life sentence for possession of one and a half pounds of cocaine, arguing that it did not amount to “cruel and unusual punishment” under the Eighth Amendment. He said the Michigan lawmakers who enacted that sentence “reasonably” could have concluded that “distribution of drugs is not a victimless crime, but in reality amounts to a violent assault both on the users of the drugs and on others who suffer the consequences of their use.”

Starr nonetheless had little trouble perceiving the injustice of Ulbricht’s life sentence for what the government portrayed as an extensive drug racket involving $183 million in sales. “The over-sentence and injustice 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 in support of clemency for Ross.”

Ulbricht’s most prominent advocate is, of course, Trump, who today begins his second term as president. “He’s already served 11 years,” Trump said at the Libertarian Party convention last May. “We need to get him home.” Regardless of your view of Trump’s broader agenda, this result should be welcomed by anyone who believes the punishment should fit the crime.