While Others Go Free, Ross Ulbricht Faces Excessive Prison Time
It is reasonable to demand that justice be applied equally throughout society. Ross Ulbricht should not die in prison when many powerful criminals live free.
This is an opinion editorial by Peter McCormack, a podcaster and filmmaker, the host of “What Bitcoin Did” and chairman of Real Bedford FC.
Over seven years ago, Ross Ulbricht was handed a double life sentence plus 40 years, without the possibility of parole. The U.S. government wants him to die in prison. The justification for such a sentence asks big questions of both the morality of the laws he was sentenced under and the judicial framework which allows for what is essentially a death sentence.
The story of Ulbricht, Silk Road, the investigation and his resultant sentencing is subjective. To some, it was an audacious and brave test of libertarianism within a system that is openly antagonistic to such actions. To others, it was the rightful incarceration of a drug dealer who caused intolerable harm. In addition, Ulbricht’s story includes accusations of assassination attempts, questions regarding the constitutional aspects of the investigation, corruption within the police, the emergent need to protect online privacy and, of course, bitcoin.
Most of the debate around Silk Road has rightly focused on whether the net societal impacts of providing a fully unregulated marketplace are positive or negative. It is the personal story behind the headlines that resonates with me, given that I’m in the same peer group as Ulbricht, share similar outlooks and interests and was an occasional user of Silk Road in its early days. That is the prism through which my views have been molded. However, while I have strong opinions, I don’t feel as though I have a morally superior view. There are plenty of people who have very troubling personal experiences, which means they will come to different conclusions about Ulbricht than I have.
Ulbricht’s punishment was related directly to the nonviolent activities associated with running Silk Road, namely: distributing narcotics, distributing narcotics by means of the internet, conspiring to distribute narcotics, engaging in a continuing criminal enterprise, conspiring to commit computer hacking, conspiring to traffic in false identity documents and conspiring to commit money laundering. It is the consideration of these acts on which my opinions of Ulbricht’s case rest.
Ulbricht is a young, well-educated, articulate man who has outstanding entrepreneurial skills and who harnessed the capacity of various technical innovations to bring something new to the world. The consideration by Trump in 2020 to pardon Ulbricht drew particular criticism. Nick Bilton, who wrote a book about Ulbricht’s case, stated in a 2020 Vanity Fair article, “I find it reprehensible that people on social media are so adamant that Ulbricht should be freed because he performed his crimes from behind a computer.”
Bilton’s argument was that there are currently half a million U.S. citizens incarcerated for drug offenses, with numerous examples of extensive life-changing sentences for much lesser crimes than those of Ulbricht. This calls into question how unfairly the current war on drugs targets certain social groups, which is an argument I would confidently assume the majority of Ulbricht’s backers would agree with. Ulbricht’s case is emblematic of the systemic failure of the war on drugs; it is not an outlier whose publicity and narrative are questionable because of relative privilege.
More importantly, Ulbricht has not looked to be treated differently by the justice system. Yes, his legal team put up a range of defenses to support his case, as is his right. Yet, once the judgment was made, Ulbricht accepted his mistakes as well as his need to be held accountable. At his original trial in 2015, prior to sentencing, Ulbricht heard the testimony from some of the parents of six victims identified to have died after consuming drugs bought via Silk Road. After hearing this, Ulbricht stated, “I never wanted that to happen. I wish I could go back and convince myself to take a different path.” Then, prior to sentencing, Ulbricht begged the judge, “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.” He was 31 at the time.
While Ulbricht admitted his guilt and culpability, it is still worth considering whether sending people to jail indefinitely for providing access to drugs is a reasonable action in a civilized society. Again, there are multiple angles to this issue and both sides of the argument have merit. Drug abuse is a massive societal issue with many tragic victims. It is hard to maintain a pro-drug stance if you have witnessed the impact on places like Los Angeles’ Skid Row, San Francisco’s Tenderloin area or Downtown Eastside in Vancouver.
But there is another side to this debate that does merit discussion. Essentially, should human beings be banned from ingesting substances because of the societal harm that can be inflicted? We allow access to alcohol which, when abused, is arguably one of the most destructive drugs in the world. We also embrace drugs for an increasing range of medical conditions: Over 20,000 drugs are approved for prescription in the U.S. and are used by 66% of citizens, most of whom are seeking to reduce blood pressure, relieve pain or mitigate mental health issues. These drugs too can be abused and lead to widespread societal harm, something I’ll touch on later. To some, the banning of certain classes of drugs for recreational or medicinal purposes is an arbitrary decision based on prejudice, ignorance and attitudes rooted in political and religious dogma.
Silk Road was first and foremost a platform for those wishing to take drugs recreationally. As I have documented in previous interviews, I used Silk Road directly for personal use. Silk Road enabled me to get easier access to my drug of choice. I abused that opportunity, and there are numerous stories of lives ruined by such activity. However, I also benefited from accessing the online community within Silk Road that provided open discussion forums predicated on supporting those struggling with addiction. That’s not to say that the Silk Road was an attempt to help people get off drugs, but neither was it a community looking to ruthlessly exploit those suffering from addiction without any concern for their well-being.
I also benefited from the measures Silk Road implemented to improve quality control. It is a known problem that an underground drug trade facilitates unscrupulous behavior where dealers seek to maximize returns by adulterating the product. This results in bad experiences, illness and even death. Such practices are widespread. In 2004, an assessment of ecstasy tablets from drug seizures in the 1990s found that up to 20% of the pills contained no MDMA, but were instead comprised of caffeine, ephedrine, ketamine, paracetamol or placebo. In 2018, 150 people in Illinois presented themselves to hospitals because they were bleeding uncontrollably after using synthetic cannabis-based products that contained rat poison. In 2021, three comedians famously died in LA after taking cocaine laced with fentanyl. Fentanyl is turning up in all kinds of drugs, which is contributing to U.S. annual overdose deaths exceeding 100,000 for the first time in 2021 — a five-fold increase since 2000; that’s one person dying of an overdose in the U.S. every 5 minutes. A medical toxicologist writing for The Conversation stated, “Buying drugs on the street is a game of Russian roulette. From Xanax to cocaine, drugs or counterfeit pills purchased in nonmedical settings may contain life-threatening amounts of fentanyl.” Fentanyl is “used as an adulterant because its high potency allows dealers to traffic smaller quantities but maintain the drug effects buyers expect.”
Silk Road, through its user-review system that sought to mimic legal retail sites, gamified the supply of drugs to reward those providing better-quality products. It was by no means a guarantee of minimum quality nor, obviously, could it be described as a safety feature, but it was mitigation for an issue that is causing unknown harm. Professor C. Michael White of the University of Connecticut studied this activity and reported on it in 2021, coming to similar conclusions to other medical experts, “The research is clear: Adding impurities to, or adulterating, illicit drugs is a longstanding and widespread practice with harmful consequences … the difference between what you believe you are buying and what is actually in the product can be the difference between life and death.”
Then there is the fact the vendor and buyer are physically separated. While trying to avoid cliches, those seeking drugs are more likely to be vulnerable people, while those selling drugs are more likely to be associated with other crimes and have violent tendencies. Having drug transactions forced underground means that vendors are forced to interact with buyers. This opens up all manor of risks, directly related to the interaction and indirectly to the locations where such interactions take place. There are short-term risks associated with specific transactions and longer-term risks associated with exploitative relationships that can develop. Silk Road broke this link. The Drug Policy Alliance, a New York-based nonprofit organization, stated that Silk Road was safer than the streets for buyers and sellers. In a 2015 article, they asserted that Silk Road “gave us a new way to imagine better management of the drug trade … We need something better than what we have now, which is nothing but failure, cartels and beheadings, mass incarceration, mandatory minimums, a vibrant and throbbing illicit market, and a prison industrial complex totally out of control.”
An important (albeit potentially small) cohort of those who used Silk Road did so to gain access to drugs for medicinal purposes. While Ulbricht was not explicitly motivated to meet the specific needs of those failed by conventional health care, this is an important factor to account for, and again, something for which I used Silk Road. There are clearly valid concerns regarding the risks of people self-medicating. Nevertheless, there is also a critical need to respect the needs of those suffering from illnesses seeking treatments outside of official medicinal practices. There are those facing the worst challenges in life, desperate to relieve chronic pain, extreme mental anguish or even people facing death. If these people want to seek drugs that are not available to them through official means, is it right that society denies them this choice?
While it is true that prescribed drugs are subject to strict clinical trials, there are also valid concerns that other drugs — which have equally powerful medicinal, therapeutic and life-affirming effects — have been arbitrarily prohibited. This includes psychedelics and MDMA, which are showing promise in the treatment of depression and post-traumatic stress disorder, and cannabis, which I know from personal experience that many people are desperate to use for a range of known and powerful benefits. The British Medical Journal reported in December last year that epileptic seizure frequency fell by 86% in kids treated with whole plant medicinal cannabis. Although cannabis products in the U.K. were made legal for patients with “exceptional clinical need” in July 2018, according to a 2021 report in The Economist, parents are struggling to access prescriptions: “Just three children … have been given prescriptions by the National Health Service.” It is perverse cruelty that prevents people from obtaining widely available, but illegal drugs that have been proven to uniquely diminish suffering.
“Reasonable people may and do disagree about the social utility of harsh sentences for the distribution of controlled substances, or even of criminal prohibition of their sale and use at all. It is very possible that, at some future point, we will come to regard these policies as tragic mistakes and adopt less punitive and more effective methods of reducing the incidence and costs of drug use.” These were not the words of any libertarian activist seeking to shine a light on Ulbricht’s case; these were the words of the appellate court’s opinion in their determination of Ulbricht’s appeal in 2017. The court affirmed the original sentence given to Ulbricht in 2015, but as the opinion attests, it is clear that they were uncomfortable with having to apply U.S. drug laws. If the legal profession enforcing the laws openly questions those very laws, surely we have approached a time for some reasoned debate.
Beyond the arguments about access to drugs within society, Ulbricht’s case brings into question the validity of penalties imposed on behalf of the state. The sentence handed down to Ulbricht — imprisoning him for the rest of his life — is a punishment reserved for the most heinous criminals. Such punishment is illegal in a number of countries, including Mexico, Brazil, Uruguay, Portugal, Croatia and the Vatican City: The Pope described a life sentence as a hidden type of death sentence. The Penal Reform International stated in a 2018 report, “Life imprisonment without parole, in particular, raises issues of cruel, inhuman and degrading punishment, and undermines the right to human dignity by taking away the prospect of rehabilitation.” Even among those countries that apply full life sentences, there are large disparities in the extent to which it is applied: In France in 2014, 0.7 per 100,000 inhabitants were serving life sentences while in the U.S., it was over 50 people per 100,000 inhabitants.
Then there is the issue of comparable harm. It is a tricky area to compare different crimes in terms of harm, but in determining the sentencing of Ulbricht, as stated, the court heard testimony from the families of six people who died after consuming drugs bought from Silk Road. Therefore, this is a reasonable measure by which to compare the societal harm caused by other crimes. Between 1999 and 2020, 538,000 Americans died during the period referred to as the opioid crisis. Forbes estimated the economic toll of the opioid epidemic being over $1.3 trillion per year. The crisis was triggered by the aggressive promotion of a prescription painkiller called OxyContin launched by Purdue Pharma in 1996. By 2004, OxyContin had become the leading drug of abuse in the U.S.
Purdue Pharma was owned by the Sackler family, who had a dominant presence on the company’s board. Despite contesting their liability for years, in 2020, Purdue Pharma finally admitted to bribing doctors to needlessly prescribe OxyContin, lying to the Drug Enforcement Administration (DEA) and paying illegal kickbacks for the purposes of promoting opioid prescribing to physicians. Purdue Pharma aggressively marketed OxyContin, while critically underplaying its addictive nature, its failure to achieve marketed pain-relief claims and pushing clinicians to administer dangerously high doses. The painkiller has 10 or 20 times the narcotic content of many regular painkillers and is 50% stronger than morphine. A Los Angeles Times investigation stated, “OxyContin is a chemical cousin of heroin, and when it doesn’t last, patients can experience excruciating symptoms of withdrawal, including an intense craving for the drug.” Time and again, it turned normal Americans into addicts, who then turned to other drugs (such as heroin and synthetic fentanyl) when their pain relief was intolerable, their prescriptions stopped and/or their addictions spiraled out of control. Purdue Pharma knew this, and yet they continued to market the drug — hard.
Purdue Pharma was assisted by McKinsey, the management consulting firm. According to a lawsuit brought by the Massachusetts Attorney General, McKinsey showed Purdue Pharma how to “turbocharge” sales of OxyContin, how to counter efforts by drug enforcement agents to reduce opioid use and was part of a team that looked at how “to counter the emotional messages from mothers with teenagers that overdosed on the drug.” There have been numerous court cases over OxyContin, resulting in fines, bankruptcy and the closure of the firm. There are legal battles over whether the Sackler family should be held personally liable in civil and criminal courts. Yet, nobody from Purdue Pharma has received a prison sentence over their involvement.
In 2020, activists and journalists uncovered a 2007 Department of Justice memo that had recommended felony charges against senior Purdue Pharma executives on the basis that they started the conspiracy in 1992, knew about OxyContin’s abuse problems within months of its 1996 launch, lied to Congress and were continuing in the conspiracy. The charges could have resulted in prison sentences. However, the DoJ decided not to file such charges at the time, because, as author Gerald Posner stated in his book “Pharma,” DoJ officials were concerned that “Purdue’s large, well-funded legal team might well overwhelm [the Department of Justice’s] small group of prosecutors.”
And there’s the rub. Justice that seeks to account for comparable harm is compromised by the wealth and power of those being brought to justice. This is maybe why only one person in the U.S. was jailed — for 2 years 6 months — as a result of the Global Financial Crisis, despite the fact that it has left lasting scars across the U.S. and the world. A 2018 study by the Federal Reserve found the crisis cost every single American approximately $70,000 — and the social impacts have been more damaging. A U.K. government body stated in a 2018 report, “The implications of the crisis on poverty, employment and political stability are worrying.” This is maybe why nobody has been held to account for taking the U.S. and U.K. to war with Iraq in 2003 on the basis of a lie, despite it resulting in approximately 200,000 civilian deaths, tens of thousands of military deaths, the displacement of millions, stability issues across the Middle East, and as some have argued, maybe the Global Financial Crisis itself. This is maybe why Exxon hasn’t been called to account for hiding the fact they knew the science behind climate change was real over 40 years ago, but instead of raising the alarm, they spent millions promoting misinformation, while the issue increasingly seems like it’s getting out of control.
Justice delayed is justice denied. But with the above cases, it’s not clear that justice will ever be served. At the same time, in a prison in Tucson, Arizona, Ross Ulbricht is being held without even the faint glimmer of hope that he will even be allowed to contest his incarceration, let alone secure any type of freedom. This isn’t whataboutism, this isn’t an attempt to confuse the issue, to muddy the waters such that Ulbricht is made out to be a heroic victim. This is merely to show that a flawed young man, who sought to test the limits of government controls on personal freedoms, is being held to the highest account, while those who seek to use their power and influence to inflict uncalled-for harm on significant proportions of society are allowed to walk freely among us.
Civilizations throughout time and across geographies and cultures have established approaches to drugs that are vastly different to the ones governments impose now. The current paradigm is neither faultless nor permanent. Laws and rules are always being tested by innovation and pugnacious individuals looking to account for changing attitudes outside of the guardrails of laws. There are risks and benefits to these approaches, just as there are risks and benefits to maintaining the status quo. Nevertheless, irrespective of the merits of reappraising the legal approach to drug use, laws were broken and a judgment was made. The rule of law demands that all people are held accountable. As Theodore Roosevelt said, “No man is above the law.” It was therefore a reasonable expectation that a just punishment would be required, just as it is reasonable to demand that justice be applied equally throughout society irrespective of power and influence. It is also a widely held principle that the enforcement of laws should be fair. In this regard, it is reasonable to declare that a life sentence contravenes Article 5 of the Universal Declaration of Human Rights, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
Ross Ulbricht should not die in prison, especially when many powerful criminals live free.
This is a guest post by Peter McCormack. Opinions expressed are entirely their own and do not necessarily reflect those of BTC Inc. or Bitcoin Magazine.
