Some people steal money with guns. Other people steal money with lies. In a court of law, they’re all crooks. But not all crooks are treated the same by the justice system, a fact Elizabeth Holmes may be counting on when it comes to her sentencing.
In a court of law, they’re all crooks. But not all crooks are treated the same by the justice system.
The conviction of Holmes, the former Theranos CEO, on four counts of fraud sends an important message that even a Silicon Valley sensation can be held accountable for her crimes. White-collar criminals like Holmes may not get their hands dirty in the traditional sense, but their conduct is no less criminal than a stickup in an alley. In fact, upper-class offenders like Holmes might be even more reprehensible; while street crime is often motivated by need, white-collar crime is usually motivated by greed.
On Monday, a jury convicted Holmes of four counts of fraud after a three-month trial. The conviction counts all related to Theranos investors. She defrauded investors, prosecutors successfully argued, by falsely representing to them that she had created a revolutionary new process for conducting medical tests with a single drop of blood. The jury acquitted Holmes of four counts, of fraud and conspiracy, and was unable to reach a unanimous decision on the remaining three counts.
The government quantified Holmes’ investor fraud, arguing it amounted to more than $140 million, a figure that will largely influence her eventual sentence. Federal sentencing guidelines consider a number of factors, including the amount of money involved in the scheme. Based on that number, as well as enhancements and the sophistication of her scheme, Holmes is likely looking at a sentence between 14 and 17 years.
Sentencing is a key inflection point for disparities in the criminal justice system. But will a judge actually give Holmes a 15-year sentence? Holmes’ defense attorneys, like the attorneys of many criminals before her, will certainly try to argue that the sentencing guidelines in white-collar cases are simply “too high.” This argument has worked with judges in the past, and high-priced attorneys know that judges can reduce the sentence considerably in a fraud case, as long as they articulate a good reason. (Unlike in criminal cases involving drugs or guns, for example, Holmes does not face a mandatory minimum sentence.)
Holmes has also spent the past few months telling her side of the story, alleging she was abused by her business and romantic partner, Ramesh “Sunny” Balwani. That defense may well be true, but it did not negate her intent to defraud. Then there’s unconscious bias to consider: Perhaps because judges see offenders who look like them or who share similar backgrounds, they often bite on the argument that sentences for white-collar crimes should be something less than the guidelines range. I have heard defense attorneys argue that their clients have already been punished enough through societal shame. You can imagine one of these white-collar defendants lamenting to his lawyer that he can’t even walk through the country club dining room without getting a nasty look from a fellow member. The other advantage white-collar defendants enjoy at sentencing is their ability to showcase a life of good deeds and letters of support. An upper-income defendant can often point to service on boards or donations to charitable causes as mitigating factors. Here again we find problematic disparities baked into the justice system: A low-income defendant lacks the resources to amass anything resembling that kind of track record. Similarly, while a defendant like Holmes can likely find prominent people to write her letters of support, a defendant lacking her resources usually also lacks the connections needed to mount a similar campaign. I have heard defense attorneys argue that their clients have already been punished enough through societal shame. Another argument often made by defense attorneys in white-collar cases is that incarcerating their clients would be a waste of resources because they pose no threat to public safety. This may be true, but the federal sentencing statute provides that the purpose of sentencing also includes deterrence and just punishment. Deterrence is especially important in white-collar cases because these are crimes that are carefully planned. No one commits investor fraud in the heat of passion. If defendants who perpetrate massive fraud can get away with a slap on the wrist, then others will calculate that it is worth the gamble to do the same. A strong sentence in white-collar cases can provide an important data point in that calculation. And fraud is not an inherently victimless crime. As we think about ways to address racial and economic disparities in the criminal justice system, we should consider not only the disproportionately long sentences that are imposed on street criminals. We should also consider the paltry ones that are meted out to the wealthy. We will find out soon enough how Elizabeth Holmes’ sentence does or does not contribute to this pattern.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
