Posted by: Allen Hoffmann, JD
May 21, 2015
As we’re all well and truly aware, the Ulbricht defense stratagem of ‘it wasn’t me, here are some other DPR options’ failed dismally – it is a matter of fact, legally speaking, that Ross William Ulbricht was DPR, and as such, ran the original Silk Road. Now, we’re on to the sentencing part of the equation, and it seems the door to an appeal against conviction is being slammed shut by the defense’s plea in mitigation that Silk Road make drug use safer.
Let me say this from the outset – I am a proponent of harm reduction. Drug use is like sex. Regardless of what prohibitions or social stigmas we attempt to impose, we all know its going to happen, regardless of whether or not school, our religious leaders, or anyone else, told us it was bad. Rather than walk into the situation blindly, we’re all better off being educated.
Additionally, I’m the first to admit its been an interesting saga, the whole Silk Road trial, and that the defense was on to some very good material in the early days. Simply put, the judge did not go the defense’s way – such is the manner in which trials proceed.
But this story, that Silk Road actively sought to reduce the harm of the drug use it facilitated by providing a dealer to user model which broke down international boundaries and permitted wholesalers access to retail clients, is just too much for me to stomach. Your mileage may vary on accepting this argument, but I don’t doubt that the defense is pulling out all the stops, considering that Ulbricht is looking at 30 to life. There is talk of the $500 a week Ulbricht offered to the renowned ‘DoctorX’, Dr Fernando Caudevilla – if that $500 a week is the extent of the active harm reduction program budget that Ulbricht was pushing, it would rank not even a single percentage point of the tax free, personal profits he was enjoying.
There are two prongs to the defense counsel Josh Dratel’s argument that Silk Road helped reduce harm – the implementation of a strict, eBay-esque feedback system helped minimize, and removal of drug transactions from the risk street level violence.
On the issue of feedback making drug use safer, does anyone really regard eBay’s feedback system as being a truly effective consumer protection mechanism? For any positives you might garner, specifically, that sellers offering bunk junk would be out of the game quickly, are similarly countered by the synergistic effect which glowing feedback likely had with increasing sales; positive feedback increased sales, and sales of drugs to satisfied users increased positive feedback. That’s to say nothing of those who unscrupulously sought to influence the feedback system through shill accounts, because hey, who could imagine wholesale drug dealers being an unethical bunch?
True enough, chances of a buyer getting stuck up with a switchblade certainly did fall when buying online, that much cannot be rebutted – but it gave rise to the additional criminal issue of abusing the mail system. And keep in mind that the Government is unlikely to look favorably on the removal of one arguably intrinsic aspect of drug trafficking, specifically street level violence, when the underlying trafficking remains, in addition to further criminality in transportation of the drugs themselves. What I mean to say here, is that in real terms, yes, it did help mitigate transaction violence – but the overall criminality involved is going to win the day.
For the good SR may’ve done, there’s equal measures of downside. Normal, workaday stiffs who wanted to dally with something naughty found themselves equipped to become small time drug importers, risking severe penalties which could have impacted upon their livelihood – and more than a few such people have gone on to become street level ‘connects’ to their local associates, which will bring with it that risk of street level or local violence which ‘direct to end user’ vending arguably countered. If you happened to live somewhere having heard tell via pop culture references or old ware stories of bygone days, of some hard to find drug to which you otherwise had no access, be it PCP, Flunitrazepam or hashish, SR gave you the capacity to acquire it. All the harm reduction arguments in the world are nullified if you couldn’t cause the harm in the first place owing to a complete lack of access.
At least one expert, Tim Bingham of the non profit Irish Needle Exchange Forum, said in a paper that the SR forums “appeared to act as an information mechanism for the promotion of safer and more acceptable or responsible forms of recreational drug use” – if it did so, it was a secondary, and unintended, consequence of the forum’s primary goal of supporting sales activity on the SR market. I wonder if Bingham’s ever bothered to write about the harm reduction works of www.bluelight.org, which has been around for many, many years as a forum geared specifically to harm reduction, or whether this was a really easy grab for publicity?
There are a great many things SR was – it blazed trails in making illicit commerce both accessible to the man on the street and the wholesale audience, it gave BTC an enormous push into the public’s consciousness, and it created for LE a whole new frontier of policing which it is a long way behind drawing even with at the time of writing. But harm it minimized was, in practical terms, offset by opportunities it offered to access drugs on a scale that hadn’t been seen previously, and direct activity to promote a harm reduction agenda was highly limited; what harm was reduced was an unintended consequence.
At the end of the day, regardless of the good it may’ve done, the sentencing judge is unlikely to be swayed by what seems to be a case of retrospective continuity on the part of the defense, attempting to re-write the goals and intentions of the original Silk Road for the benefit of Ulbricht, regardless of any positives it may actually have achieved.