Delivering on the pledge he made to the Libertarian Party at its convention last summer, President Donald Trump on Tuesday pardoned Ross Ulbricht, a former Eagle Scout and computer whiz who in 2011 created Silk Road, which became a huge global online market for illicit drugs. Like other presidential pardons of the past few weeks, Trump’s decision to free Ulbricht after nearly 12 years of incarceration has divided the public.
So who has the better argument — the “Free Ross” libertarians or the “Let Him Rot in Prison” posse? That depends in large measure on how one assesses several key features of his case and the criminal justice system.
Who has the better argument — the ‘Free Ross’ libertarians or the ‘Let Him Rot in Prison’ posse?
Start with the conduct for which Ulbricht was convicted: abetting the distribution of narcotics, conspiracy to aid and abet computer hacking, conspiracy to traffic in fake IDs, conspiracy to launder money and engaging in a continuing criminal enterprise. Those charges certainly sound serious, even sinister, but they all arose out of his creation of an online marketplace where willing sellers and buyers could anonymously exchange payment for products, including illegal ones.
Libertarians point to the fact that such marketplaces arise from the enforcement of paternalistic laws that make it a crime for people to buy, sell and consume substances that others don’t think they should put in their bodies. Most libertarians also believe that — as with smoking and the consumption of alcohol (which together kill more than half a million people per year) — a person’s decision to consume illicit substances is a personal one that is properly none of the government’s business. And if someone creates an online marketplace where drug sales can be done more safely than on the street — which is precisely what Silk Road provided — then that should be none of the government’s business either.
But wait, say Ulbricht’s vociferous critics — he didn’t just create Amazon Prime for drugs; he engaged in other, more culpable behavior, including soliciting murder for hire. As it happens, the government did accuse Ulbricht of paying to have several people killed, including some he suspected of embezzling money from him. But prosecutors chose not to include any of those charges in the case that went trial, so the jury never heard the government’s evidence or saw it tested in open court. Instead, the trial judge determined by a mere preponderance of the evidence that Ulbricht had in fact solicited murder for hire and factored that into her rubble-bouncing sentence of two life terms, plus 40 years in prison. So much for the concept of innocent until proven guilty according to constitutionally established procedures.
Moreover, there is ample reason to be suspicious both of the prosecution’s tactics and the integrity of its investigation, given that at least two federal agents stole hundreds of thousands of dollars in bitcoin from Ulbricht while working undercover to help take him down. Those agents, Carl Force of the Drug Enforcement Administration and Shaun Bridges of the Secret Service, betrayed the public trust and sought to profit from their official positions. Upon conviction, they received 78 and 71 months, respectively — a tiny fraction of Ulbricht’s sentence and about half the time he actually served before being pardoned. Did Ulbricht deserve to have the slate wiped completely clean by a full presidential pardon instead of a commutation that would have left his conviction in place but sprung him from prison? Perhaps not. But is it justice for him to grow old and die in prison while sticky-fingered federal agents who corrupted the investigation and disgraced their badges walk free after serving their vastly less punitive sentences? Emphatically not.
Clark Neily
Clark Neily is senior vice president for legal studies at the Cato Institute. His areas of interest include constitutional law, overcriminalization, coercive plea bargaining, police accountability, and gun rights. 
