Biden Should Go Big on Clemency

COMMENTARY

This past November, Democrats defied political gravity to hold on to the Senate and minimize losses in the House. The message from voters was clear: Despite deep economic anxieties, most Americans believe that the Biden administration has a chance to overcome political division and do right by the country as a whole. Now, with a split Congress and a pressing need to find common ground, the president would do well to prioritize clemency and sentencing reform, enduring issues with deceptively broad support. He could start by commuting the sentences of some of the most evident victims of injustice. One example is Ross Ulbricht.

Ulbricht is best known for creating Silk Road, a first-of-its-kind, anonymized e-commerce platform intended as a libertarian digital utopia at a time when unchecked government surveillance was de rigueur. Although his motivations were mainly ideological, many of Silk Road’s users were less high-minded — predictably, the site became popular for the sale and purchase of drugs, with “soft drugs” like marijuana outselling “hard drugs.” Federal investigators soon took notice and in 2013, less than three years after Silk Road launched, Ulbricht was arrested and jailed.

Despite not presenting a single witness to support it, prosecutors successfully painted Ulbricht as a dangerous criminal mastermind, even accusing him of planning multiple murders-for-hire. The murder-for-hire allegations were not part of Ulbricht’s trial charges and were later dismissed, but Ulbricht’s trial found him liable for what Silk Road users sold on the site so he was convicted of nonviolent counts related to creating and running Silk Road. As a result, he is serving a sentence of double life in prison plus 40 years, without the possibility of parole.

In hindsight, it is clear Ulbricht’s sentence is disproportionate to his crime. Attitudes towards drugs have changed profoundly in the 10 years that he has been imprisoned. Even among Americans who oppose legalization, few would agree that a first-time, nonviolent offender should spend the rest of his life in prison for creating a website used mainly to sell marijuana. This makes Ulbricht a legitimate candidate for clemency and the face of a broader push for sentencing reform that unites left and right.

Polls show that, across the country, there exists overwhelming bipartisan support for criminal justice reform. Although precise views may differ, Americans of all political dispositions agree that the status quo is unacceptable. Unfortunately, permanent legislative solutions remain elusive because of partisan disagreements over what reform should look like. Until those differences can be bridged, executive action is the most viable path forward. In its most direct form, that entails commuting the sentences of and pardoning people whose incarceration is at odds with basic principles of morality and justice. 

Former President Barack Obama issued nearly 1,400 commutations over the course of his presidency, more than the previous 12 presidents combined. Ulbricht’s case provides President Biden with an opportunity to elevate the issue of over-sentencing.

Ulbricht, whose case resonates both with progressive Democrats and small government Republicans, has won the support of many. From Russell Brand to Ron Paul, dozens diverse, prominent figures across the political spectrum have spoken out against his sentence, as well as dozens of bipartisan organizations. And a petition calling for his clemency has attracted more than 550,000 signatures, despite its receiving far less news coverage than other online petitions. In short, there is little risk in granting him clemency, and a world of upside.

It is very difficult to get most Americans to agree on anything in today’s political climate, but the adage “justice delayed is justice denied” is still a point of consensus. It is unconscionable that anyone should be condemned to life in prison without the possibility of parole for a first-time, nonviolent offense, especially when the legitimacy of some evidence presented against them at trial is in question. Yet for Ross Ulbricht and thousands of past, current and future inmates like him, that is the reality of the United States criminal justice system.

Clemency is no substitute for deep structural reform — justice is a foundational right, and its attainment shouldn’t depend on presidential discretion — but it would be a profound mistake to dismiss commutations and pardons as stopgap measures or, worse, excuses for not taking broader action. To the maximum extent possible, Biden should push congress to pass sentencing reform legislation to solve the problem once and for all. Until that happens, he should use his executive authority to provide clemency frequently and robustly, in the interest of fair and proportionate justice.

Al Wynn is a former member of the United States House of Representatives. As a member of Congress, he represented the 4^th District of Maryland from 1993 to 2008.