I don't believe Elizabeth Holmes should spend the rest of her life in prison.

I'm in a vast minority on this topic.

After watching the new HBO documentary--called The Inventor: Out for Blood in Silicon Valley--I can tell you that my sympathy meter didn't change too much. I already knew she deceived millions. I already know she is facing prison time.

My surprising discovery, though, is that I now view her as a tragic figure, a tortured soul who didn't seem to know the consequences for fleecing people for so many years.

She probably knew it was wrong; I'm not sure she knew it would mean spending several decades in prison and millions and millions of dollars in fines.

This is not meant to defend her.

When I first wrote about how we should have known Elizabeth Holmes was a fraud when she first gave a TED talk, I detailed exactly how the words she used at the time should have been a tip-off. I read the book by John Carryrou, I listened to the podcast (called The Dropout), I studied up on her antics. I've been processing the story, and even speaking about it at conferences. I usually play a portion of her TED talk. I ask questions about fraud and deceit, about vision and entrepreneurship. I give my opinion about Silicon Valley venture capital and how the system is broken and needs to be fixed.

Yet, I stopped short of saying she should serve a long prison sentence, partly because it's not my job to sentence her, and also due to the fact that none of us actually know all of the details. At the time, I asked a question: Should she be a punching bag for all of us?

I would argue no.

In the documentary, you can see how it all plays out. Perhaps it was how she was raised--we hear about the pressure to succeed, about how the family history was preparing her to become a billionaire, regardless of whether she had good ideas. We listen to company pep talks that seem so indefensible now, so contradictory. Several segments show her walking through the halls of Theranos, or looking at the camera, or appearing on the cover of Inc.

Of course, we know enough to suggest she is a con.

No one is using the Theranos machines today. We know that, because of the device, patients did not find out about serious illnesses like blood clots. We know investors lost millions. Employees were threatened. One even committed suicide.

My questions are all about severity of the crime.

I'm not a lawyer. You might say she willingly, decisively, and intentionally misled millions. OK. That's fine, but we know enough about the charges to make some obvious conclusions. She faces nine counts of mail fraud and two counts of conspiracy to commit wire fraud. Each count carries a maximum of 20 years in prison.

That's 220 years total.

Just pause for moment and let that sink in.

I just didn't see that kind of monster, that level of total depravity, in the documentary. I saw an ambitious, misguided entrepreneur who failed to understand consequences. (How could she have imagined a prison sentence that lasted until she is 255 years old?) More importantly, I just watched a movie. I am no ton the jury. I am not prosecuting her.

None of us are. You can try to do that on Twitter, but the fact remains:

We don't know. We never will. We're not the SEC, we're not on the legal team. 

She likely won't get anywhere near the maximum sentence. However, she faces even more charges. If convicted, she would likely spend several decades locked away.

Now it's time to ask. As much as you know, and as much as you have witnessed the fraud, or even been a victim of the fraud yourself, do you think she deserves that much prison time? Is 50 years enough? How about 70 years (she would be 105 at the time)?

And, why do we think we have the right to convict her?

What I'm really getting at is this. We are so quick to throw stones. If you're like me, you've watched a few documentaries, read books, and listened to a podcast. I'm not ready to judge her. I don't know her, and I don't have all of the facts. (Good luck with that, since there are millions of pages of supporting documents in the case.) Lock her up for good?

I'm not ready to support that. I don't have all of the facts.

Do you?

Published on: Mar 18, 2019
The opinions expressed here by Inc.com columnists are their own, not those of Inc.com.