More on Sentencing

Rejected by Judge

  • Harm Reduction

Below are links to academic studies that were submitted to Judge Forrest as exhibits in support of the defense argument that Silk Road accomplished harm reduction in the drug trade.

Surfing the Silk Road: A study of users’ experiences.
Silk Road, the virtual drug marketplace: A single case study of user experiences.
Responsible vendors, intelligent consumers: Silk Road, the online revolution in drug trading.

Judge Katherine Forrest. Illustration: Reuters

As revealed during oral arguments, the defense made the harm reduction argument to counter the prosecution’s claim that Silk Road (and Ross) was responsible for six deaths that were alleged to be “in some way” connected to the site.[1] Judge Forrest rejected the studies, referring to Silk Road’s harm-reducing effect as “a fantasy” and “magical thinking.”[2] In a post-sentencing statement, Defense attorney Joshua Dratel responded:

“The fantasy is that long sentences make any difference. The fantasy is that the internet will not be a source for drugs or illegality because of this sentence. The fantasy is that this sentence is anything more than just purely punitive and completely beyond the range of what drug offenders get in this district, in this circuit, in this country.”[3]

The judge also rejected studies and articles concluding that long sentences do not deter crime. Her deterrance theory was quickly disproven by the proliferation of dark net markets after Ross was sentenced.[4] Dratel added:

[Judge Forrest] “took what was the unanimous consensus of professionals who have studied this site [Silk Road] as objective independent professional researchers, and reduced it to a selection of a word here and a word there, and twisted it on its head.”[5]

  • “Incomplete, unreliable, inaccurate”

The defense submitted, and Judge Forrest deemed irrelevant, a detailed 11-page forensic pathology report that concluded the cause of death could neither be scientifically determined nor linked to Silk Road.[6] The defense called the accusations “incomplete, unreliable and inaccurate.”[7] Yet, during sentencing, the judge heavily relied on these uncharged, unproven allegations to justify her sentence.

“Given the nature and complexity of those issues – allegations including overdose deaths and drug quantities – it is far from clear that petitioner should be held responsible for the deaths at all. He has the right to have a jury of his peers decide.”
– Drug Policy Alliance & Law Enforcement Action Partnership in a brief supporting the Supreme Court petition.[8]

Read more at Sentenced for Uncharged Crimes.

  • Family and friends implore the Judge

Judge Forrest was also unmoved by the 100 letters [PDF] from friends and family (including fellow inmates) attesting to Ross’s compassion and principled character. These people pleaded with her to give Ross the lowest sentence possible, speaking of the positive contributions Ross had made, and would make in the future, if given a reasonable sentence. Although Judge Forrest called the collection of letters “impressive,” she found them unconvincing.[9] During sentencing, she seemed confused by all these letters that showed Ross to be a different man than what the government made him out to be. “Frankly, I can’t make a judgment about which of you to know, which of you to rely on, and which of you to believe,” she said.[10]

There wasn’t more than one Ross, a flesh and blood man sitting before her, there was more than one DPR, a digital persona that was designed to be passed on and used by multiple people. Instead, Judge Forrest decided that Ross is just “very, very complex.”[11]

Shocks the conscience

Ross’s appeal referenced the Sentencing Reform Act, which requires that a judge impose a sentence that is “sufficient, but not greater than necessary.”[12] This act was passed by the Congress to provide fairness in sentencing and avoid disparities among defendants with similar charges (see Sentencing Disparity).
Ross looking at his parents during sentencing. Illustration: Elizabeth Williams
Judge Forrest failed to provide any basis for a life sentence as necessary.

“The life sentence imposed on 30-year old Ross Ulbricht “shocks the conscience” – or at the very least “stirs it” – and is therefore substantively unreasonable. Accordingly, Ulbricht should be resentenced before a different judge to avoid the irremediable taint from the improper factors the Court considered.”
– Dratel arguing for a new trial.[13]