More on Sentencing

Rejected by Judge

– Academic Studies

Below are academic studies by Marie Claire Van Hout and Tim Bingham published in the International Journal of Drug Policy, that were submitted to Judge Forrest as exhibits in support of the defense argument that Silk Road accomplished harm reduction in the drug trade.

Judge Katherine Forrest. Illustration: Reuters

As revealed during the appeal’s oral arguments, the defense submitted these to counter the prosecution’s claim that Silk Road (and Ross) was responsible for six overdose deaths allegedly connected to the site. Judge Forrest rejected the studies. During sentencing, she referred [PDF] to Silk Road’s harm-reducing effect on society as “a fantasy”, as “magical thinking”. 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.”

Additionally, the defense also presented, and the judge rejected, many studies and articles concluding that long sentences do nothing to deter crime. 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.”

– Forensic pathology report

In addition to rejecting the academic studies the defense submitted, Judge Forrest also rejected a 11-page forensic pathology report [PDF] that said the accusations linking Silk Road to some overdose deaths were “incomplete, unreliable and inaccurate” and the cause of death could not be scientifically determined. Yet, during sentencing, the judge heavily relied on these uncharged, unproven allegations of overdose deaths 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 [PDF] in support of the Supreme Court petition, page 4.

Read more at Sentenced for Uncharged Crimes.

– Family and friends’ testimonials

Judge Forrest was also unmoved by the 100 letters [PDF] from friends and family (including fellow inmates) attesting to Ross’s principled character and compassion. These people pleaded with her to give Ross the least amount of time possible, speaking of the positive contributions Ross had made, and would make in the future if given a reasonable sentence. Although Judge Forrest called [PDF] the collection of letters “impressive”, she found them unconvincing. 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 [PDF].

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 [PDF] that Ross is just “very, very complex.”

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.” This act was passed by the Congress to provide fairness in sentencing and avoid disparities among defendants with similar charges (read our Sentencing Disparity page).
Ross looking at his parents during sentencing. Illustration: Elizabeth Williams
In Ross’s sentencing, Judge Forrest failed to provide any basis for a life sentence as necessary. Furthermore, her theory of Ross’s sentence deterring future sites has been disproven as the number of dark web markets has kept increasing since.

“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.”Appeal [PDF], page 139.