Ulbricht’s More Than The Minimum Sentence

On grandma’s internet, a company called eBay made a boatload of moolah by skimming a piece off the top of thousands of counterfeit Louis Vuitton purses.  Vuitton wasn’t amused, and pressured eBay to end the sale of counterfeit bags, even though ironically the auctions didn’t prevent a single legitimate sale.  After all, buyers of ridiculously expensive plastic purses were not looking to eBay for knock-offs. But it did dilute their brand.

But where was the message from the feds that this must stop, that this new-fangled internet could hurry the downfall of civilization by providing an outlet for cheap ladies’ accessories?  It’s not that the silence was deafening, but that everyone understood that the internet was going through growing pains, and part of those pains involved dealing with its use by those who might use the new forum for illicit purposes.

Yet, when time came for SDNY Judge Katherine Forrest to impose sentence on convicted Silk Road impresario Ross Ulbricht, it was all about the message.

Ahead of Ulbricht’s sentencing Friday, prosecutors in his case have sent the judge a 16-page letter asking that Ulbricht be given “a lengthy sentence, one substantially above the mandatory minimum.” And one of the reasons for that harsh sentence, the Department of Justice attorneys argue, is to “send a clear message” to anyone who would follow in Ulbricht’s footsteps and create the next Dark Web drug market.

The mandatory minimum was twenty years. Twenty years, for those of you unfamiliar with the concept, is a very long time. It’s within the scheme of a murder sentence in New York, higher than the minimum.  It’s a generation, to give it some context. Twenty years is a very long sentence.

“Ulbricht’s conviction is the first of its kind, and his sentencing is being closely watched,” the prosecution’s letter reads. “The Court thus has an opportunity to send a clear message to anyone tempted to follow his example that the operation of these illegal enterprises comes with severe consequences.”

So let’s add this up. Someone says to themselves, let’s create a marketplace in the dark web, the place where grandma doesn’t go, that’s beyond the reach of manmade laws and exists only within the self-imposed limits of its users.  Think Ayn Rand meets Lord of the Flies.  What could possibly go wrong?

Naturally, Silk Road became, among other things, a place where illegal substances were bought and sold, because people want to buy and sell them despite the government’s wishes to eradicate drugs.  Good heroin is still heroin. And it’s still better heroin than the stepped-on crap sold on street corners.

In mitigation of the harms heaped on Ulbricht by the prosecution, his attorney, Josh Dratel, argued that Silk Road had its virtues.

“[T]he Silk Road website was in many respects the most responsible such marketplace in history, and consciously and deliberately included recognized harm reduction measures, including access to physician counseling,” he wrote. “Transactions on the Silk Road website were significantly safer than traditional illegal drug purchases and included quality control and accountability features” that kept purchasers “substantially safer” than regular drug purchases.

A fascinating argument, provided its purpose was to martyr Ulbricht by infuriating the government and judge.  After all, what government official wouldn’t be impressed by an assertion that the defendant before it was guilty as sin, but really good about it?  And indeed, Judge Forrest was unimpressed.

“[What] is clear is that you were captain of the ship as Dread Pirate Roberts and you made your own law. It was your opus, and you wanted it to be your legacy.” “What you did was unprecedented,” she told Ulbricht, “and in breaking that ground as the first person he had to be punished accordingly.”

“You are no better a person than any other drug dealer.”

Two life sentences plus, a brutal sentence for someone “no better a person than any other drug dealer.”  But then, his crime wasn’t being a drug dealer. Not even profiting off other people who were drug dealers. Not even facilitating other people’s drug deals. No, no, no. Sure, all that was involved, but that was not what bought him life.  This was:

“[A]nd in breaking that ground as the first person he had to be punished accordingly.”

There is a substantial question as to whether the general deterrence component of sentencing is real or one of those cool theories that legislators and academics adore.  It makes complete sense, but for those of us in the trenches, who hold hands with people who engage in bad conduct despite massive sentences and a long history of “messages sent,” the message doesn’t exactly filter through.

Yes, Ulbricht was sentenced so harshly for the hubris of thinking he could create a virtual agora beyond the reach of government and its laws.  Sure, they could smack around a 31-year-old kid named Ross, but they couldn’t touch Dread Pirate Roberts.  Judge Forrest’s message was that no place was safe from the government’s reach.

While this may have been the message sent, it’s unlikely to be the message received. Rather, there is another kid sitting in a basement somewhere thinking that Ulbricht’s effort was clumsy, obvious.  He got too full of himself, too big for his breeches perhaps, and grew sloppy.  The government didn’t find him because it had such mad computer skillz, but because Dread Pirate Roberts didn’t cover his tracks.

The dream of a virtual world beyond the control of bureaucrats and politicians, with their petty laws and their hypocritical moral stewardship, won’t die that easily.  That kid in the basement, shaking his head at the sentence imposed on Ulbricht, heard Judge Forrest’s message. I suspect his reaction will be “challenge accepted.”

As for Ulbricht, a twenty year sentence would have been more than sufficient to serve any legitimate purpose.  In twenty years from now, no one will remember why they put some kid in a cell forever, as somewhere on the dark web, if not openly on a street corner, there will be heroin for sale.

17 thoughts on “Ulbricht’s More Than The Minimum Sentence

  1. Christopher Best

    Challenge accepted?

    Your use of popular memes makes me giddy. Lawyers are people, too. Who knew?

  2. John Barleycorn

    Three yawns esteemed one. The Josh Dratel barb was a bit soft too.

    Have you decided to take a pass on your part time interest in the “new” law/s of technology currently being “interpreted” or are you awaiting the future trials that didn’t make it out from under the covers of this first trial?

    Not that that would keep a federal judge from speculating about the untried (as of yet) conduct of the defendant at this sentencing.

    The two Feds now under indictment for cookie jar theft from the bad guy should prove to be interesting as well.

    Yeah, perhaps this case is a bit too straight forward and not “the right case” (if only the SWATT guys got there first and the lap top in the library closed…) to really go there but still…

    Perhaps, the future spin off trials will include all the “unknown” nuisances of a more thorough attempt by the defense. Although they might be pretty straight forward as well.

    We will see…

      1. John Barleycorn

        I should have waited until after the cocktail hour this evening and broke out the red sharpie perhaps? But it could be a trap. There is a whole lot not here to be getting to worked up about just yet.

        Don’t worry the cheap seats are preparing a banner. But it is still unknown if this was just a weak bullpen warm up or more likely just some sort of pre-game game of catch in the outfield sort of post.

        It certainly wasn’t under the lights in the seventh inning. I could be hallucinating but it certainly looks like catch in the outfield during warmup. But it’s pretty weak even for that. Unless you have a groin injury and won’t be pitching tonight anyway.

        Fucking pitching staff managers are getting worse than horse trainers when it comes to fucking
        with the book.

    1. Jeffrey L. Boyer

      “[T]he Silk Road website was in many respects the most responsible such marketplace in history…”

      Since you cracked the door slightly ajar with the above snippet, I’m gonna push it a little further and stroll through.

      Granted, a court judge is going to be less-than-amused by such an argument, but I find the notion of a venue like Silk Roads somewhat intriguing.

      An oft-repeated ‘reason’ for a war on drugs is to mitigate danger from drug-related crime; notably theft, robbery and violence. However, something like Silk Roads cleverly eliminates much of that. The anonymity, untraceable features, and the use of Bitcoin as currency can possibly remove some of those bad elements.

      Mugging someone’s pockets for Bitcoins for the next ‘fix’ is fruitless. Looting a residence/shop/automobile for Bitcoins is a similarly losing proposition…at least until a prevalent/easier exchange method emerges.

      The anonymous and online facet removes drug ‘turf wars’, ‘drug deal gone bad’ scenarios and other related violence.

      The Silk Road seems like an approach that might have some exploratory value. My cynicism leaves me thinking that the potential removal/decrease of drug-related crime, and a non-traceable/non-national currency method is precisely the reason why our justice/political system would NOT want to entertain accommodating law for such a possibility. Rather, I expect calls to curtail alternative digital currency and reduce ability to anonymize and peer-to-peer client/server/routes because none of that could possibly protect a citizen, only criminals would want them.

        1. Jeffrey L. Boyer

          It may or may not fly. [Ed. Note: Lengthy balance deleted as off topic. If you want to muse about what would constitute a good drug market, do it on your own blog.]

  3. Village Idiot

    Like bugs to a zapper. Zzzt. Just a never ending stream of carcasses littering the ground below. Deterrence means nothing — it’s like turning up the intensity of the light. And zzt, zzt, zzzzzzzzzzzzzzzzzzzzzzzzztt….

  4. SL

    Wouldn’t sections (b) and (s) of 848 be controlling here? IANAL so I defer to your expertise.

    1. SHG Post author

      Not sure what you’re asking, but Ulbricht was charged with CCE under 21 U.S.C. 848(a) in the second count of the indictment, which carries a 20 year mandatory minimum. The government didn’t charge (and therefore, couldn’t get) a mandatory life sentence under b.

  5. R. Weaver

    Deterrence is predicated on the premise that potential offenders do a cost – benefit analysis when considering whether or not to commit a crime. In over 35 years of practicing criminal law, I have never once had a client who considered the potential sentence if caught when deciding whether to commit a crime. None of them ever thought they’d be caught.

    1. SHG Post author

      Your last sentence is the killer. No one ever thinks they’ll be caught, making the cost-benefit analysis pointless. And like you, I’ve never represented a defendant who thought it through, and almost none who had a firm grasp on the cost part of the equation in any event.

  6. Marc R

    Did DOJ seriously argue a heroin dealer giving out clean needles with every dime bag shouldn’t get a mitigated sentence from a dealer who gives out Hep C reused needles? I don’t see allegations he sold anything; he just setup and maintained the site. Should city engineers putting section 8 housing in already criminally saturated areas be prosecuted if 6 shooting deaths occur in those housing projects?

    There was open prostitiion on Craigslist which is now on Backpage. And tons of “party favor” language not referring to kazoos. Don’t recall Craig being arrested? And obviously Arpnet or al gore should get quintuple life since they allowed the internet to have more sites unable to be traditionally indexed or cut n paste a URL.

    Chances the circuit court remands for a guideline sentence? What’s the aggravating factors exactly besides overdoses? Walgreens probably has tbousands more ODs than silk rd.

    1. SHG Post author

      That’s a fine arg, but you may be giving a bit short shrift to the other side. Clearly, Judge Forrest thought so. Frankly, I think the safety first argument was just a bit too cute and disingenuous, and likely inflamed the court.

  7. Ken Mackenzie

    The defense lawyers’ perspective on general deterrence is a bit skewed. We tend to see the people who were not deterred. It’s harder to tell if others were. But it’s an approach with diminishing returns. If you’re not deterred by 20 years, life, or even death, probably won’t make any difference.

    1. SHG Post author

      Not too many defendants spend their time learning about such things as potential sentences or engage in a cost-benefit analysis. Of course, those who do, and therefore don’t commit crimes, never get on our radar, so there are the known unknowns for whom deterrence may work. But I wouldn’t bet there are many.

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