The Supreme Court announced this morning that it will not reconsider the conviction and life sentence without parole of Ross Ulbricht, convicted for various crimes associated with founding and operating the darkweb site Silk Road. The Supreme Court typically does not explain such rejections.
It’s a shame they aren’t required to explain themselves, because the sea change in Fourth Amendment jurisprudence the Supremes effected with last week’s Carpenter decision definitely means that the ways the government used warrantless searches of Ulbricht’s computer use in arresting and convicting him are far less obviously legal than the 2nd Court of Appeals in considering Ulbricht’s appeal were required to see them by pre-Carpenter precedent.
It’s not that Carpenter, which was about cellphone records and not internet data, unequivocally dictates that Ulbricht should have won on appeal had the Court considered his case. But the entire Fourth Amendment environment under which he was arrested and convicted is so different now that a thorough rethinking was definitely in order.
The Fourth Amendment wasn’t the only issue the Court had an apposite opportunity to rethink with Ulbricht’s case. His life sentence without parole was based on accusations he was never actually tried on—namely that he was involved in planning (uncommitted) murders for hire. That raises important Sixth Amendment questions that at least Justices Thomas and Gorsuch have shown past interest in rethinking if the right case came along.
Ulbricht’s lawyer Kannon Shanmugam wrote in an earlier memo to amici in the case that for the actual crimes he was convicted on, “Ulbricht’s Sentencing Guidelines range would have resulted in a recommended sentence of, at most, 30 years in prison.” Despite the manifest injustice of sentencing based on crimes never proven in court, “the Court has previously declined to grant certiorari on petitions presenting this question” (of sentences based on unadjudicated accusations).
As the cert petition for Ulbricht explained, “it is hard to imagine a better example of the consequences of runaway judicial factfinding than this case. Petitioner, a young man with no criminal history, was sentenced to life imprisonment without the possibility of parole for drug crimes that do not ordinarily carry that sentence, based substantially on numerous factual findings made by the sentencing judge by a preponderance of the evidence.”
Most reasonable people would agree judges shouldn’t hand down sentences for crimes never proven in court. It’s a question that, in addition to the very important Fourth Amendment implications, made Ulbricht’s case one urgently requiring rethinking. Unfortunately and for reasons unknown, the Supreme Court did not agree.
Ulbricht’s mother Lyn has been a tireless crusader explaining the injustices involved in the investigation and sentencing of her son. (See an interview with her in the July print issue of Reason.) In a written statement this morning, she says “This is devastating news for Ross and our family.”
She goes on to explain why even Americans who might have no particular sympathy for her or her son personally should also be discouraged. The Court’s declining to reconsider his case “is also a blow to privacy rights and protections. While the Carpenter decision establishes that the government must obtain a warrant to search our cell phone records, Ross’s case is much more far reaching. With this denial of certiorari and its arguments, the Court continues to permit the government to secretly track our internet browsing history and activity with no warrant, oversight or probable cause. Internet activity offers up a wide range of personal and relevant information, including religious and political affiliations, sexual orientation and activity, medical information, apps, etc. Surely it is in the spirit of the Fourth Amendment that obtaining and using this information, at the least, should require a warrant. Today’s order puts all our privacy in peril and bolsters the surveillance state.”
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