The Drug Policy Alliance (DPA), Law Enforcement Against Prohibition (LEAP), JustLeadershipUSA, and retired judge and current Harvard law professor Nancy Gertner filed an amicus brief this week in Ross Ulbricht's appeal of his conviction last year for crimes associated with launching and operating the darknet website Silk Road, where customers exchanged bitcoin for usually illegal substances.
Among their contentions are:
• A life sentence without parole for a non violent crime (that, it is worth pointing out, mostly consists of facilitating, not even performing, illegal sales or purchases) "violates the Eighth Amendment because life without the possibility of parole sentences for non-violent drug offenses are inconsistent with contemporary standards of decency," because of an ongoing trend in lowering drug trafficking sentences on the federal level, and the international rarity of life-without-parole for any offense.
In 2013, life sentences were "imposed in less than one-third of one percent of all drug trafficking cases." Nationally, only two percent of all persons sentenced to life in prison were convicted of drug offenses. Life sentences are typically reserved for persons who committed violent crimes. As of 2013, over 90 percent of all life sentences in the United States were imposed on persons convicted of murder, sexual assault, rape, aggravated assault, robbery, or kidnapping.
• The brief further maintains that the convicting district court "committed procedural and substantive error when it imposed an unreasonable life sentence." The
district court erroneously included unreliable and inaccurate information about six alleged overdose deaths as a factor at sentencing….the district court improperly relied on overdose death information when making its sentencing decision, because it is impossible to demonstrate that the overdose deaths were connected to or primarily caused by drugs purchased on Silk Road.
Mr. Ulbricht opposed consideration of the overdose deaths and submitted a report by defense expert Mark L. Taff, M.D., concluding that the information was insufficient to demonstrate a direct link between drug purchases from Silk Road and the deaths. The government provided no rebuttal to Dr. Taff's report. Amici agree that the supposed association between the six overdose deaths and Silk Road is specious….
Among the other factors in our culture to which blame could be placed for any given overdose death, the brief states, are:
[lack of] expanded access to and training for administering naloxone, a drug used to reverse opioid overdose…[lack of] ensured access to integrated prevention services, including access to sterile injection equipment and supervised injection facilities; and the establishment of Good Samaritan or 911 drug immunity laws which encourage people experiencing overdose and those at the scene of an overdose to seek medical help….
Because fatal overdoses are primarily the result of a multitude of complex medical and public policy failings, and not drug use alone or the provision of a drug alone, Mr. Ulbricht should not be held responsible for the alleged overdose deaths. In considering the overdose death information in its sentencing decision, the district court violated Mr. Ulbricht's due process rights and committed procedural error when it imposed a life sentence.
In general, it was wrong, the amici contend, for the court to consider any unadjudicated "facts" in its ridiculously harsh sentencing:
the district court included uncharged, unadjudicated, and ultimately unsubstantiated conduct about overdose deaths and murders for hire in its rationale for sentencing Mr. Ulbricht to life without parole. These facts were not evaluated by the jury, let alone proved to the jury beyond a reasonable doubt. In addition, defense expert Dr. Taff advised the court that the evidence connecting Mr. Ulbricht to the overdose deaths was weak at best. Thus, the uncharged facts should not have been used as a rationale for sentencing Mr. Ulbricht to the upper limit of the Guidelines range and doing so defies the Due Process Clause.
The brief also argues that the theory of deterrence the court relied on in its harsh sentencing doesn't hold up to the best current facts, including the fact that the Ulbricht prosecution for sure hasn't successfully deterred other people trying to sell or facilitate the sale of drugs on the Internet.
For all the background on Silk Road and Ulbricht's arrest, see my December 2014 Reason feature "How Buying Drugs Online Became Safe, Easy, and Boring."