A Federal judge sentenced Theranos, Inc. founder Elizabeth Holmes to eleven years and three months in prison last week. Essentially the judge had limitless options, with only execution being off the table. Based on the maximum sentences for each the four crimes she was convicted of, she theoretically could have been given the equivalent of life in prison. Prosecutors asked for a 15-year sentence, three years of supervised release, and more than $800 million damages. The layers for Holmes, now 38, had asked for home detainment, community service, and no more than 18 months in prison. (My son spent half that in jail for a reckless driving offense when he was 18. Just for perspective….)
What did Holmes do? Wikipedia has an excellent one-stop summary: the short version is that she invented a purported blood testing system that didn’t work, faked data, sucked in investors, doctors and patients, made billions, and engaged in all manner of lies, threats, manipulations and schemes to avoid the consequences of her actions. The government argued that Holmes deserved a severe punishment because “dozens of investors lost $700 million and numerous patients received unreliable or wholly inaccurate medical information from Theranos’ flawed tests, placing those patients’ health at serious risk.” This is undoubtedly true. Her defenders counter than “she didn’t kill anybody,” she is a first time offender, and her crime was one of non-violence. This is also true.
Your Ethics Alarms Ethics Quiz of the Day is….
Is Holmes’ 11 years+ sentence for her massive, 15-year fraud fair, just, proportionate and in the best interests of society—in short, ethical?
Is it too lenient, or too severe? I know what I think, but here are some random points to consider…
- There is no agreed-upon standard for sentencing. The Federal Sentencing Guidelines were presented as if they were arrived at scientifically, but that’s an illusion: they are entirely subjective and arbitrary. Judges are told that they must impose a “sentence sufficient, but not greater than necessary” to achieve the ethical goals of sentencing. These flow from the answers to several questions; How bad was the crime? How bad is the defendant? How much does the defendant need to be punished to make sure she doesn’t do this again? How do we send a message to other would-be wrongdoers? What have other defendants received for similar crimes?
What is “necessary”? How does one judge “bad”? There are just two ways to make certain that a criminal doesn’t “do it again”: lock him or her away for good, or kill them.
- That list of reasons why Holmes’ should receive leniency is full of ethics traps. First time offender? That means this is the first time she was caught. Holmes is brilliant, and shows all the signs of being a sociopath. Many (like me) suspect that she got herself pregnant with her second child to coincide with her trial and sentencing. No, her crimes didn’t involve violence; neither did Bernie Madoff’s. The violence distinction, in my view, has become cant because the Left finds it a facile way to excuse drug crimes. Why is an armed robbery that takes $100,000 and involves bashing a security gurad over the head considered a more serious crime than a Theranos-style mass robbery that uses lies and schemes instead of weapons? Brilliant but ruthless people don’t need guns; their brains are dangerous enough. Holmes didn’t kill anybody? Pure moral luck. Her fraud easily could have, and she didn’t care.
- On his blog Simple Justice, thoughtful defense lawyer Scott Greenfield argues that Holmes’ sentence is far too severe. His reasoning comes down to, in the end, to “it’s not the worst thing”:
While both terrorism and financial fraud are crimes, are they comparable? Does the same quality of culpability apply to someone who defrauds sophisticated investors by promising a technology that doesn’t exist as pulling the trigger and murdering school children?…[W]hite collar offenses aren’t the same as looking into the eyes of a second-grader and deciding to pull the trigger and end her life. [W]e’ve ratcheted up sentences from a decade in prison, an astoundingly long time reserved for only the worst criminals, to life plus cancer for any crime that outrages people… [W]e have mass incarceration because too many insipid people have come to believe that outrageously long sentences are needed for anyone, no less someone like Holmes. There was nothing lenient about this sentence. There are far too many sentences for other crimes that go far beyond “the ‘sufficient but not greater than necessary’ standard found in 18 U.S.C. § 3553(a),” and arguing that yet another defendant should die in prison is exactly the destructive mindset that should rejected.
Remember that Scott is a criminal defense attorney, so his bias is hardly surprising. The reference to “over-incarceration” also reveals of his ideological orientation. In contrast, I don’t believe that there is over-incarceration in the United States at all. Greenfield’s logic flows from the error of opposing capital punishment: if the toughest punishment we have for child-killers like Parkland school shooter Nikolas Cruz is only life without parole, then sure, the same or similar sentence for someone like Holmes (of Madoff, who got that sentence) makes no sense. This is exactly why a death penalty is so crucial: it sets an ultimate limit, allowing lesser but still terrible crimes to still receive appropriate punishment.
- Holmes also represents the difficult problem of how the system adjusts for hard-wired human bias. Beautiful women, especially beautiful white women skilled in manipulating people, have all manner of cognitive dissonance advantages with juries, judges and the public. I don’t know this can be taken out of the equation, but it is definitely a factor that she benefits from, and should not.
Finally, history and experience teach that people like Holmes are predators, and will always be a danger to society regardless of how many times they may fail, lose, or suffer. Next time, she may get away with her schemes. The safest thing for society is to stop Holmes from having another chance to harm people for as long as possible.