When Ross was arrested and brought to trial, many called him a political prisoner. A HuffPostLive interview after Ross’ sentencing blasted the headline: Silk Road Founder Is A ‘Political Prisoner,’ Mother Lyn Ulbricht Says.  Yet I didn’t actually say that. What I told host Caroline Modarressy-Tehrani. was: “ This is such an overreach. We are not supposed to have political prisoners in this country.” (It is always interesting what the media will make into a headline).

Even then I wondered if mentioning political motivation might be overstating it. But then the other Silk Road defendants, some who actually sold drugs, were sentenced by a different judge, and, and I was convinced.

People convicted as top drug sellers on Silk Road got a relative slap on the wrist. A top administrator during the height of Silk Road got 17 months (yes months) — time served — and (I’m happy to say) is now a free man. Recently Brian Farrell, a top admin of Silk Road 2.0, got 8 years. Yet Ross got double life + 40 years, with no possibility of parole. Why?

sentence disparity

It is actually against the law to give a sentence so out of proportion. The punishment must fit the crime and be at least in the same ballpark as those with similar offenses. Congress passed the Sentencing Reform Act forbidding such disparity, which Ross’ appeal calls “grotesque.”

I now think it is obvious from the other sentences that the Silk Road case was not about drugs, but about the site as a political threat. The government considered it dangerous, needed an example, and Ross was it.

The government and the judge each made it clear that the case was political. As Ross’ appeal points out, basing a sentence on Ross’ political philosophy violates the First Amendment’s guarantee of freedom of speech and can’t be the basis for a lawful or reasonable sentence.

In spite of this, the government states in its brief that Ross’ life sentence is not unreasonable and expressed doubt that Ross had abandoned the beliefs that led him to start Silk Road. The judge agreed, stating: “It is also notable that the reasons that you started Silk Road were philosophical and I don’t know that it is a philosophy left behind.”

The Judge calls this philosophy “deeply troubling and terribly misguided and also very dangerous.” Yet the law, which she took an oath to uphold, states that considering someone’s philosophy is “an irrelevant and prohibited factor” in sentencing, forbidden not only by the Constitution, but the Sentencing guidelines.  The judge’s sentencing Ross more severely because she was not sure that he had abandoned his political views is clearly unlawful.

As a lawyer I know said: “Neither Thomas Jefferson nor James Madison would likely have fared well if brought before Judge Forrest, because of their similarly ‘dangerous’ views.”

The judge’s statement clearly implied another unlawful consideration: that she would have been willing to disregard Ross’ troubling and dangerous political views if she had been convinced that he had abandoned them.

Ross’ sentence also flies in the face of precedent: “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.” Thornhill v. Alabama, 310 U. S. 88, 101-102, 310 U. S. 95 (1940).  “[S]peech concerning public affairs is more than self expression; it is the essence of self-government.’’ Garrison v. Louisiana, 379 U.S. 64, 66 (1964).

In addition, according to the court, the expression of political views concerning drug laws involves core political speech, an area where First Amendment protection is “at its zenith.” See Meyer v. Grant, 486 US 414, 422 – 425 (1988).

Judge Forrest may personally find Ross’ political views troubling and dangerous.  However, it is not within her authority as a United States district court judge to consider his political views in determining a sentence.

In fact, it is against the law.

That a court would, in part, issue a life sentence based on political beliefs and statements should frighten us all.