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Dysfunctional Justice System Inflicts Cruel, Unusual Sentences, Oct. 2, 2020.

By Bernard Kerik with Rod Blagojevich

At 26 years-old, Ross Ulbricht made history, when he did something that many called genius — he wrote code and created a website called Silk Road.

It was the first modern online free market, where users could anonymously buy and sell goods and services, both legal and illegal.

As a result of his genius, today marks the eighth year anniversary of his federal prison incarceration in what is considered one of the worst travesties of our criminal justice system.

Ulbricht was targeted, investigated, and prosecuted with the zeal equaled to those like John Gotti, Osama bin Laden and Al Capone.

He was ultimately held responsible for everything users listed on his site and was convicted on all nonviolent charges, including conspiracy to traffic narcotics, money laundering conspiracy, and engaging in a continuing criminal enterprise.

Following his arrest in 2013, prosecutors also alleged that he planned murder-for-hire although, curiously, he was never charged or prosecuted for it at trial (and the allegations were dismissed with prejudice by a U.S. District Judge in 2018).

On May 29, 2015, now-retired Judge Katherine Forrest sentenced Ulbricht on five counts, all nonviolent. Her judgement for this first time, non-violent offender: two life terms, plus 40 years without parole!

That sentence amounts to two death sentences, plus 40 years.

At first glance, given the government’s charges and allegations and some media coverage, some may assume that Ulbricht’s sentence was reasonable.

However, having overseen and conducted investigations such as these, the more we examined the overall case — the allegations, the trial, and end result — something just didn’t add up.

If Ulbricht’s crimes really warrant life in prison, why was Blake Benthall — arrested on the same charges as Ulbricht for running the larger copycat Silk Road 2.0 — released after two weeks by the same people who prosecuted Ulbricht?

Why were two corrupt federal agents at the core of the investigation (with unfettered access to Silk Road) aggressively hidden from Ulbricht’s jury?

Why were the largest Silk Road drug sellers sentenced to 10 years and less?

And if there were any tangible evidence that Ulbricht planned murder-for-hire, why didn’t the government charge and prosecute him?

Surely, we’d know all this and more, but no --- nothing.

Additionally, based on the prosecutors’ claims, surely, there would have been a two-mile line out of the courthouse of crime victims ready to testify against Ross Ulbricht --- but there were no victims at the trial either.

Ross Ulbricht was handed three death sentences, essentially for being a reckless young idealist who had the audacity to use his genius to create a vehicle where others engaged in illegal Internet sales (primarily of cannabis) undetected by the authorities.

No victims were ever named at his trial. He was never prosecuted for causing death or bodily injury to anyone.

Let us say it again. As a first-time, non-violent offender, Ross Ulbricht was given two death sentences, plus 40 additional years.

According to a recent report from the United States Department of Justice, more than half of violent offenders serve less than three years in prison.

The average prison sentence in America for a convicted murderer is 16.5 years.

Convicted rapists serve on average 9.8 years, and violent crimes like robbery, or the taking of property by force or the threat of force, the average time is 4.7 years.

In far too many cases, violent repeat offenders are under-sentenced while nonviolent first-time offenders like Ross are grotesquely over-sentenced.

Ross Ulbricht’s sentence is also an example of how wildly unfair sentencing disparities can be for offenders with similar charges.

While Ross was sentenced to die in prison, every other prosecuted Silk Road defendant received far lighter prison sentences ranging from a high of 10 years to a low of 17 months.

His case may very well be the most glaring example of how broken and deeply dysfunctional our criminal justice system is.

In our American justice system, the underlying philosophy behind sentencing someone to prison is that that the punishment should fit the crime. The United States Constitution guarantees every American equal protection under the law.

But in the case of Ross Ulbricht, who never committed a violent act and who was never convicted of any previous crime, that constitutional guarantee of equal treatment under the law — and that idea that someone should only do the time that fits the crime — is a big lie.

Prominent legal experts who support Ross’s release from prison have expressed the view that the circumstances involved in his case raise serious fourth and sixth amendment constitutional issues, particularly that of using allegations that were never proved in a court of law to support an unreasonably harsh prison sentence.

In fact, in 2018, 21 highly-respected organizations spanning the ideological spectrum joined in support of Ross’s efforts to raise these constitutional issues before the Supreme Court. These organizations include, but are not limited to, Law Enforcement Action Partnership, FreedomWorks, American Conservative Union Foundation, Cato Institute, Human Rights Defense Center and National Lawyers Guild.

Now 36, Ross begins his eighth year in prison, today — Oct. 1.

He has been a model prisoner throughout his years of incarceration, teaching classes and tutoring his fellow inmates. He follows the rules and has never received a disciplinary infraction. Ross has expressed remorse and accepted responsibility for his actions.

He is the son of a loving mother of modest means who has relocated her home several times to be near the prison where her son is incarcerated.

We have each, in different ways, witnessed firsthand how unfair and dishonest our criminal justice system can be. Both of us have been the beneficiaries of President Donald Trump’s compassion.

Commissioner Kerik was granted a presidential pardon, while Gov. Blagojevich had his 14-year prison sentence commuted.

We both join over 350,000 people who have signed their names to a petition to President Trump supporting Ross Ulbricht’s release.

More than 250 organizations and prominent people from all across America — from the legal community, business community, religious community, education community, the media, Hollywood, current and former legislators, and human rights activists, have all spoken out in support of this clemency effort.

The Eighth Amendment to the United States Constitution expressly prohibits punishment that is too severe for the crime committed. It characterizes it as cruel and unusual.

Our nation extols the ideal of justice for all. But Shakespeare reminds us that there is no justice where there is no mercy, and Ross Ulbricht’s case shows us that there cannot be justice for all when there is cruel punishment for some.

We respectfully ask that President Donald Trump do what only he can do: grant Ross Ulbricht clemency, to right this wrong, and end one of the greatest travesties of justice in American history.

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