Wednesday, March 20, 2019
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Wrong Message in the Ulbricht Case

Silk Road

The first thing that entered my mind upon reading that New York City Federal Judge Katherine Forrest had sentenced Silk Road mastermind Ross Ulbricht to life in prison without parole was, “What in the world could that woman be thinking?”

At the sentencing hearing, Forrest indicated that the draconian sentence she was imposing on Ulbricht was meant to serve as a message to discourage other people from following in Ulbricht’s path. How in the world did she arrive at such nonsensical reason for locking Ulbricht away for the rest of his life — without any possibility of parole?

It’s not as though Ulbricht didn’t express remorse for what he had done, which is one of the major factors that federal prosecutors and federal judges want to hear at sentencing. Prior to sentence being imposed, Ulbricht said to Forrest: “I wish I could go back and convince myself to take a different path. If given a chance, I would never breach the law again.”

As it was, Ulbricht faced a mandatory minimum sentence of 20 years. That was the best he could hope for. The 31-year-old Ulbricht told the judge prior to sentencing:

I know you must take away my middle years, but please leave me my old age. Please leave a small light at the end of the tunnel, an excuse to stay healthy, an excuse to dream of better days ahead, and a chance to redeem myself before I meet my maker.

But that plea for mercy fell on deaf ears. According to an article in the Guardian, “prosecutors demanded that the judge set a ‘lengthy sentence, one substantially above the mandatory minimum’ for Ulbricht, to set an example for those setting up other similar marketplaces which have proliferated since the shuttering of Silk Road.”

Judge Forrest obviously agreed with the reasoning of those Justice Department prosecutors who demanded that she impose a higher sentence.

But why did she adopt that reasoning for her draconian sentence? That’s what makes no sense to me. Forrest is a judge with a brilliant legal mind who had an extremely successful legal career prior to becoming a federal judge, both as a private attorney at one of New York City’s biggest law firms and as a deputy assistant attorney general in the Justice Department.

Here’s why Forrest’s reasoning makes no sense to me.

I grew up in Laredo, Texas, which is on the Texas-Mexican border. During the 1950s and ’60s, during the time I was a kid, Laredo was a center for illicit drug activity. Criminal defense lawyers were making a financial killing off the many drug busts that were taking place. My father was an attorney in Laredo and also, for a time, served as the federal magistrate. So, I grew up around federal drug cases.

During those years, Laredo didn’t have a federal judge living there. The federal judges would come in from Houston on a rotating basis to handle federal cases. At least one of those federal judges (who was a close personal friend of my parents) and most likely the others had the same mindset as Judge Forrest — that he was going to impose enormously high jail sentences on drug defendants as a way to send the same message to others — Don’t even think about going down this road or this will happen to you.

And it wasn’t just Laredo where federal judges were bound and determined to play their part in winning the war on drugs. One of the federal judges in San Antonio, Judge John Wood, who had been a high school friend of my father, had also served as an attorney in a large law firm, just like Judge Forrest. After assuming the bench, he became known as “Maximum John” for always meting out the maximum jail sentence to drug dealers.

After I graduated from law school in 1975, I went to work for my father. One of the first cases I helped him with was a drug case in federal court in San Antonio. It involved a one-count federal indictment alleging a conspiracy to possess heroin. Mind you, our client, who was around 20 years old, along with his two co-defendants who were about the same age, had never possessed any heroin. They had simply talked about getting some. They were convicted of conspiracy in a trial presided over by Judge Wood. Their sentence? Maximum John gave them each the maximum — 15 years in the federal penitentiary.

Some of my friends in high school incurred the wrath of such federal judges. Caught with a small amount of marijuana, they ended up with federal convictions and long jail sentences.

Now, ask yourself: What good did all those messages delivered in the form of long jail sentences to drug law violators do? Did subsequent people cease and desist from drug dealing or drug use?

Of course not. Those draconian sentences did no good at all. In fact, consider Ross Ulbricht. Did the message that was sent by federal judges in the 1960s, ’70s, ’80s, ’90s, and ’2000s with their long jail sentences in drug cases dissuade Ulbricht from establishing Silk Road?

Nope. And neither did it dissuade the multitudes of people engaged in the illicit drug business during the past several decades.

In fact, guess what: Forrest’s draconian sentence isn’t even serving to dissuade Silk Road-type competitors from continuing the same type of operation that Ulbricht was operating. Check out an article entitled “The Dark Web Drug Lords Who Got Away” by Andy Greenberg that got posted this week on Wired. Heck, Ulbricht’s competitors and new potential competitors might well be ecstatic that Forrest has removed Ulbricht as a competitor.

What all too many federal officials, including federal judges, have is a notable lack of understanding about economic principles. Maybe that’s because economics is not taught in law school. If they had such an understanding, they would understand that the more they crack down in the drug war, the worst the problem becomes. Just ask people in Mexico about that, where tens of thousands of people are now dead, not because of drugs but because of ever-increasing crack-downs in the war on drugs.

That’s due to simple economic laws of supply and demand. When they make drugs illegal, they cause the price and the profits to soar. That inevitably lures people into getting into the drug business, especially young people, who think they’ll never get caught. The way they figure it is — the potential financial rewards are so high and the risks of getting caught are so low, they’ll chance it.

That’s why, over the decades of the drug war, there has always been a plentiful supply of drugs no matter how many draconian jail sentences were being imposed. As soon as they jailed one drug dealer, the price of drugs would soar even higher owing to reduced supply, which lured new people into the drug trade. It’s a never-ending spiral.

The same thing happened, of course, with Prohibition. There was always plenty of booze for everyone no matter how many draconian jail sentences were meted out by federal judges to booze dealers. Fortunately, the American people finally realized that the only solution to that insanity was to relegalize alcohol.

And that, of course, is the only solution to drug prohibition as well. All that federal judges like Katherine Forrest are doing with their draconian sentences is adding to the mountain of ruined lives from the drug war and, at the same time, luring new people into the drug-war snare.

Forrest ought to do the right thing. She ought to summon Ulbricht back to her court and acknowledge that her reasoning for her draconian sentence was faulty, nonsensical, and illogical. She ought to impose the lowest possible sentence on that young man. Better yet, she ought to send the correct message to her fellow federal judges and federal prosecutors by dismissing the case entirely.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.

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