On Wednesday, in a lengthy 139 page opinion, the Second Circuit Court of Appeals upheld a harsh life-without-parole sentence for Ross Ulbricht, the alleged creator of the Silk Road darknet marketplace. In 2015, a lower court convicted Mr. Ulbricht of operating the Silk Road website, on which individuals bought and sold drugs. The court sentenced Mr. Ulbricht to life without the possibility of parole, the harshest punishment short of death that our legal system allows.
The public has grown skeptical of the effectiveness of harsh punishments for drug offenses. By a ratio of nearly two-to-one, Americans favor moving away from mandatory minimum sentences for nonviolent drug crimes. Support for health-based, rather than criminal justice, approaches to illegal drug use spans nearly all demographic groups. There is bipartisan support for ending the harsh sentencing policies of the 1980s and 90s, the heyday of the war on drugs. Yet, Attorney General Jeff Sessions has hailed a return to mandatory minimum sentences for drug offenses.
In Mr. Ulbricht’s case, prosecutors asked the judge to “send a clear message” with a sentence well beyond the mandatory minimum of 20 years. As the Drug Policy Alliance noted in the amicus brief it filed in support of Mr. Ulbricht, we have long known that draconian sentences are ineffective at reducing drug use and sales and are costly to society and individuals. The Second Circuit even recognizes that these sentences do not make sense. In its opinion, the court noted:
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.
The court also recognized that first time drug offenders, like Mr. Ulbricht, are not typically sentenced to the maximum allowable under the federal sentencing guidelines. Yet the court upheld Mr. Ulbricht’s sentence because of the extraordinary facts in the case. The court found Mr. Ulbricht worthy of an atypical sentence because, unlike the vast majority of federal defendants facing first time drug offenses, he created a massive darknet marketplace on which illegal drugs could be bought and sold.
Decades of harsh federal sentencing guidelines for drug offenses have failed to return positive public policy impacts and have been extremely costly. Black and Latinx persons are particularly harmed by harsh sentencing policies. Despite similar rates of drug use and sales across racial groups, black and Latinx individuals are disproportionately arrested, convicted, and sentenced for drug crimes.
These draconian sentences also fail to deter similar activities by others. For instance, since Mr. Ulbricht was arrested, it has been estimated that hundreds of Silk Road copycat websites have been created on the darknet to facilitate illicit drug sales.
Because harsh sentences are not effective at reducing the incidence and costs of drug use, we should continue to work across the aisle to reform these outdated sentencing practices.
Jolene Forman is a staff attorney at the Drug Policy Alliance.