How much is too much?
That is the subject for today's blog post.
Elizabeth Holmes, the convicted CEO of Theranos is facing sentencing on November 18.
The government is asking for 15 years.
The defense - check the link- is asking for 18 months.
So how much time is enough?
A day in jail is awful. A year is life changing. Five years is life altering.
Considering that the government is seeking restitution in the amount of over 800 million dollars (or roughly the salary for the Yankees starting four rotation next year) Elizabeth Holmes's life is inexorably altered for the worse. She is not keeping any of the profits of Theranos- because there were no profits. Only losses.
So explain to us how, in 2027, after having served five years in prison, if she was released 1) people would be in danger and/or 2) CEOs would see on their Apple news feed a piece on her release and call in their top people and say "Liz Holmes just got released. So that billion dollar fraud we were thinking about doing? It's a go. We can all do five if we have to, right?"
We cannot see a purpose for incarcerating Elizabeth Holmes for more than two years. The Court's restitution order will remain in effect for at least 20 years.
There is no such thing as deterrence in criminal law. We have yet, in approaching forty years in the field, to meet one blessed person who has said to us something like "I was thinking of doing a pump and dump stock scheme, but then I read that decision out of the Fifth Circuit affirming the 134 month sentence, and I just decided I couldn't do the 11 plus years."
It is not as if Holmes will get out of prison, rub her hands together, twirl her moustache, and ask her cohorts if they know about any widows whose investment accounts they can plunder.
There needs to be sanity brought back into federal white collar fraud sentencing. There is however, very little hope on the horizon. People who are emotionally involved in these matters scream at the press "she got away with it" if her sentence is not death.
And that's the problem. Congress responds to those apocryphal stories more than it does sentencing and recidivism data.
So we think the over/under is 120 months and we are betting over. Because when the US government can squash you like a bug on a windshield and send you to our gulags, they do so, trumpeting due process all along the way.
17 comments:
"The defense - check the link- is asking for 18 months."
They say in their sentencing memorandum "the defense believes that home confinement with a requirement that Ms. Holmes continue her current service work is sufficient."
So they are asking for 18 months...of house arrest.
Oh, yeah, that'll show her. 18 months of being confined to a mansion while the hired help fetches her lattes and smoothies. Unspeakable cruelty!
"Elizabeth Holmes's life is inexorably altered for the worse. She is not keeping any of the profits of Theranos- because there were no profits. Only losses."
Yes, just look at her current life of penury. She has shacked up with Billy Evans, some millionaire hotel company heir. She already had one kid by him and is pregnant with the second, just in time for her to "plead the belly" at her sentencing. She's still living the charmed life palling around with other rich people. They haven't shunned her as "damaged goods." She hasn't been made into a leper.
"We cannot see a purpose for incarcerating Elizabeth Holmes for more than two years."
Was there a purpose for sentencing Bernie Madoff for 120 years when he died a little over a decade into his sentence? Holmes's arrogance and deceit was not confined to just rosy optimism about her device and "fake it till you make it." She sicced high priced attorneys and investigators to intimidate and terrorize employees, whistleblowers, and reporters. She deserves to have some terror and trauma inflicted upon her.
"The Court's restitution order will remain in effect for at least 20 years."
You know that restitution orders are not worth the paper they are printed on. Poor defendants just plead poverty and sneer that you can't get blood from a stone. Rich defendants have myriad ways of pleading poverty and claiming to have no assets whatsoever on paper, while they live the high life paid for by their spouses or family trusts or some other dubious sources that avoid restitution and civil attachment.
"It is not as if Holmes will get out of prison, rub her hands together, twirl her moustache, and ask her cohorts if they know about any widows whose investment accounts they can plunder."
Her high profile friends begging for mercy on her behalf, like Senator Cory Booker, say she still hopes to make a "positive impact" on the world. So clearly she has not been totally shunned by influential people and still may have enough connections and cache to start another..."venture" or philanthropy b.s.
"On April 1, 2019, Justice Gorsuch, writing for a five member majority, rejected Bucklew’s claims, holding that when a convict who is sentenced to death challenges the state’s method of execution on Eighth Amendment grounds, he or she must demonstrate that alternative, less painful methods of execution are viable. In so ruling, Justice Gorsuch remarked that the Eighth Amendment 'does not guarantee a prisoner a painless death—something that isn’t guaranteed to many people, including most victims of capital crimes.'
It is difficult to argue that Justice Gorsuch was not acknowledging the proportionality of suffering between a capital crime victim and a person convicted of that offense. In fact, Justice Gorsuch appears to justify the pain which may be suffered by the wrongdoer in the course of carrying out the death penalty because of the pain inflicted on the victim. The opinion has been widely criticized by death penalty opponents."
HAS REVENGE BECOME A JUSTIFICATION TO LEGITIMIZE THE DEATH PENALTY?
BY JORDAN RYAN
"There are two basic theories advanced for the justification of punishment, both of which ultimately reject revenge as legitimizing criminal penalties. One fundamental theory of punishment is utilitarianism..."
"The second fundamental theory justifying punishment is retribution, which rejects the exclusivity of societal goods of punishment, concluding instead that wrongdoers must be punished because a wrong was committed."
In a nutshell, people punish out of revenge, but we always talk about nobler ideals. So you're going to have those kneejerk reactions crying out for blood, as people have done for centuries.
See https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1190&context=djclpp_sidebar
What's the over/under on her paying off the restitution?
I had a young family member get involved in a white collar medicare fraud case. No priors. His involvement was minimal, he cooperated til he was blue in the face, had amazing mitigation, spent a fortune on a high powered lawyer and still got sentenced by Hurley to 43 months. She deserves every minute of what she gets. [BTW: Guess where I hope Hurley is right now.]
I’ll take the over.
Damn Rump, you're getting soft. 18 months?. I represented a grandmother in a conspiracy with restitution of about 4mil. Never had as much as a parking ticket. 50 months from seitz. The fact that she would get pregnant twice after her arrest shows she thinks nothing of her actions. I'd give her 15 years. Let her come out for her daughter's junior year prom.
I have a much bigger problem with locking up a drug dealer for decades. At least the white collar criminals actually have victims.
Rump/Captain, any word on judicial rotations?
SAO *still* doing this:
Sec 1: Hello
Def Atty: Hi Im a defense attorney calling to speak to ASA Julia Smith
Sec 1: What's your name?
Def Atty: John Doe
Sec 1: How do you spell that?
Def Atty: D-O-E
Sec 1: Do you have a case number?
Def Atty: Yes, F22-007, James Bond
Sec 1: Just a moment please
*hold*
Sec 2: Hello
Def Atty: Hi Im a defense attorney calling to speak to ASA Julia Smith
Sec 2: Whats your name?
Def Atty: John Doe
Sec 2: How do you spell that?
Def Atty: D-O-E
Sec 2: Do you have a case number?
Def Atty: Yes, F22-007, James Bond
Sec 2: Okay let me see if she is here.
*hold*
Sec 2: She is not here.
What on earth is the point of all this? It should be:
Def Atty: Can I speak with ASA Julia Smith
Sec 1: Let me transfer you.
Sec 2: Hello, youre calling to speak with ASA Smith? She's not available. Would you like to leave a message?
Def Atty: Yes here is my name, number and case number.
How About releasing most of the 66000 mostly non violent federal inmates to garner in a new philosophy of punishment in the U
S.? Do we still incarcerate more than any country?
gov.uscourts.cand.327949.1643.0.pdf
Agree. Lots of info for nothing. The SAO switchboard and fielding of calls is pretty third world
"The Court's restitution order will remain in effect for at least 20 years."
She's also arguing she cannot afford to pay any restitution. Pleading poverty as expected.
She got sentenced to 11.25 years.
Should be at least 120 months
5.55 had it exactly right.
135 is a lot of time, but if she were an FPD client, she’d have gotten 20 or 30. Her guidelines were life but probation recommended 108 & the govt asked for 180. I’ve never seen anything remotely like it. I can’t help but think that probation, the govt and maybe the court were afraid to let the general public see how the sausage was made. If the court had handed out the kind of sentence to Holmes that it routinely hands out to people who aren’t from privileged backgrounds, the general public would’ve been shocked. Now that the Holmes case is over and the cameras are packed up, the players can go back to handing out inhumane sentences to non-celebrities.
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