Elizabeth Holmes Sentencing and Legal Loophole for ‘Disruption’

According to Jacob T. Elberg, an associate professor of law at Seton Hall who has prosecuted health care fraud at the U.S. Department of Justice, convicting a corporate employee like Holmes has many barriers, especially the need required to demonstrate intent. Room. “The focus of our criminal justice system is on knowledge and intent and not just outcomes, and this burden frequently creates a challenge for prosecutors trying to catch criminals,” he said. Company executives must be held accountable.

Prosecutors will focus on the financial fraud in the Holmes case rather than on the patients who were cheated, Elberg said, because “there are obvious black and white lies, which is what the system currently requires. bridge”. That’s a disturbing feature for those who see this trial as an opportunity to finally hold the founder accountable for the abuse of public trust.

When the verdict was made, Alex Gibney, director of the documentary Elizabeth Holmes Inventor, said he was surprised and disappointed by the message it sent. “During the making of the film, the magenta line was all immoral,” he told me over the phone. “They are putting patients at risk,” he said. “I wouldn’t be interested in telling this story if it were just about attracting high net worth individuals — she crossed the line.”

The final trial did not follow a similar narrative. Perhaps it is naive to think that a courtroom is about ethics, or even social responsibility. Sure, there are plenty of attorneys—whether attorneys general and district attorneys or litigation specialists—who think creatively about how to enlist legislation to punish opioid manufacturers, fossil fuel companies, and more. , tobacco companies and gun manufacturers for the social harm they have caused. But these individuals tend to use civil law, which does not carry the same purposeful requirements as criminal law.

For technology companies, the task of holding them criminally responsible for the social damage they cause is even harder. For starters, these companies are often popular with the public and defy accusations of harm by looking far ahead, at where the happiness they are leading us to. They also benefit from being seen as passive — they don’t dig wells, they tell us, they just let people who oppose vax spit out. The source of their mistakes could be a mysterious algorithm that seems to work on its own. It’s a convenient, tech-enabled separation from the decisions made on their platform. This might explain the feeling of helplessness many of us feel when it comes to the growing power of tech companies — it seems to victims around us, but there is no crime or crime related to suffering.

To change this direction – to protect the public as carefully as we protect investors – requires us to rethink how we expect corporations and their officers to behave. judge. We will need to expand the capacity of federal agencies like the Food and Drug Administration to conduct the kind of in-depth investigation that could expose the bad intentions of business officials. In addition, we may shift the standard from criminal intent in these cases to something easier to prove, such as negligence, Senator Elizabeth Warren Proposed in 2019 as part of her Corporate Governance Accountability Act.

The purpose of these changes isn’t necessarily to fill prisons with more corporate executives, like Holmes, but rather to get them noticed: When you consider how you treat the public, be Act with respect to the law the way you would when asking for a major check from investors.

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