Dong-Pyou Han, who was sentenced earlier this month to nearly five years in prison for faking the results of HIV vaccine experiments, has appealed the decision.
According to Report on Research Compliance, which first reported the news, the appeal was filed on July 15. In addition to the prison sentence, Han had been ordered on July 1 to repay more than $7 million to the U.S. National Institutes of Health, and to serve three years of supervised release following his prison term.
Former ORI director David Wright told Report on Research Compliance (paywalled) that
he could not support the sentence Han received, and expressed fears that it might lead to fewer findings of misconduct being made at the institutional level.
“Faculty members or fellow researchers at biomedical research facilities who are asked to sit on a misconduct [panel] would think twice –– I know I would –– if they thought the investigator would go to jail in addition to losing his career,” he said.
The sentence, as we noted in the Des Moines Register the day it was handed down, was a stiff one, and unusual in misconduct cases.
Like many others, I’ve always been bothered by the seemingly lax punishments meted out to those who commit serious misconduct, especially fabrication and falsification. But, I do appreciate David Wright’s position that “Faculty members or fellow researchers at biomedical research facilities who are asked to sit on a misconduct [panel] would think twice –– I know I would –– if they thought the investigator would go to jail in addition to losing his career”. If by “fellow researchers” Wright means colleagues at the offender’s institution or those known to the offender, which is how I would interpret his comment, then a way to get around this problem would be for the misconduct investigation to be carried out by a third party. I understand that in Japan misconduct investigations are run by scientific societies and other like entities and that misconduct panels are composed of subject matter experts from institutions other than the offender’s. Perhaps we should be taking a closer look at this model.
If someone defrauded the IRS out of a comparable amount of money, would you want to see them go to jail? If they robbed a bank for $7M, would you want to see them convicted of a crime? Personally, I have no qualms whatsoever about putting science frauds in jail.
It is the degree of the sentence, not its elements, that is the question. The warm cuddly feeling of “they got what they deserve” ultimately has to be leavened by the fact that beyond a certain period the *length* of incarceration (as opposed to its fact in this case) does not really serve to protect society. What it certainly does is prevent the offender from trying to make financial restitution and/or a suitable fine. Regarding the financial end of the sentence, how much of the 7 million actually enriched the offender, and how much was spent by others?
I whole-heartedly agree with Dr Roig. It is imperative that misconduct investigations be carried out by third parties who have no stakes in the game.
Thanks to Retraction Watch for reporting on my little scoop (difficult for a monthly) in Report on Research Compliance.
The main story discusses the appeal, sentence and plea agreement, and includes more quotes from Wright, Sen. Grassley, folks at ISU and others. I also published statements from the sentencing memorandums from both the prosecution and defense on jail time vs. probation, and broke down where the $7.2 million came from.
(The issue contains other stories as I focus broadly on research compliance issues of relevance to university officials who oversee federally funded research).
Happy to send a copy to those who email me at [email protected].
David W (as quoted) is spot-on in pointing out the severity of Han’s sentence for acts of data falsification, when handled here as a case in criminal law, is unjust. And Miguel R rightfully observes that many recent ORI sanctions for Research Misconduct are inexplicably light. However, it is well to remember PHS Research Misconduct fits under administrative law, as the bulk of the events it generally covers (FFP) do not meet the required legal elements of crime (In this case, “fraud”). Fraud stands on its own; whether an act of Research Misconduct constitutes fraud first requires fact-finding. The risk by some advocating for subpoena powers for ORI, coupled by indiscriminate conflation of “fraud” to FFP elsewhere by some blogmeisters, only increases the overhead imposed upon the conscientious individual in making allegations and in resolving their concerns. The added overhead associated With Han’s sentence negatively affects the integrity of the process upon which we rely by which falsification in the scientific literature is corrected.
First, I am not an attorney, however, it is my understanding that it is not the act of misconduct. per se, which makes FFP a Federal crime. It is the submission of such falsified data to a Federal agency in a request for research funding which is considered fraud. That makes sense to me. The 57 month sentence does not.
I do not believe that in the past anyone has been sentenced to more than a year.
Don Kornfeld
True, the fine print under the signature line on a NIH grant application does subject signatories to the USCode. However it is hard to argue that a second party 1) believed a deception, 2) acted on that belief, and 3) was injured by that process, when the false statements were made in an unfunded grant application (or noncompeting grant renewal). (See Required elements for “fraud” ala Blacks Law Dictionary) Moreover, journals attach such no lingo about the USCode. Misconduct findings have pertained to those situations. I am not a layer either, just a happily retired ex investigator. But I suspect the signatory line confers only potential jurisdiction whilst it’s the facts of the event that defines it as a crime or not (Definitional authority). In terms of a criminal punishment, One famous respondent got one year plus a day prison term, but that was largely because he suborned perjury after suing to stop the institution from reporting to ORI. (Alan Price has nicely reviewed those issues.)
In 2006, Mr. Paul Kornak, got a 6 year prison term. He had been a Clinical Research Coordinator at the Stratton New York Veterans Administration Medical Center, falsely claimed to be an M.D. and falsified clinical trial data, including that to enroll an ineligible veteran patient, who died from the treatment? DoJ found negligent homocide, and was directed him to pay restitution to two pharmaceutical companies and the VA in the amount of approximately $639,000, and ORI debarred him for life.
http://www.gpo.gov/fdsys/pkg/FR-2006-02-24/html/E6-2667.htm
http://www.usdoj.gov/usao/nyn/NewsReleases/2005/2005-02/200502031553.htm
$7+ million dollars is a lot of money. 57 months does not sound out of line, especially since not only is it a matter of the money, it is a matter of falsifying medical research that one should assume can have real consequences. Why would medical criminals, and that’s what people who steal money are, stop stealing money from the government unless they have real consequences as well?
I think the most dramatic consequence of this case is that it will make it increasingly unlikely that anyone accused of misconduct will want to cooperate with an investigation. My observation is that a lot of these cases including this one are resolved because the respondent admits to the offense. In this case, Hahn cooperated presumably thinking that he would loose his job and be subject to some meaningless ORI sanctions but instead his admissions led to federal prosecution and this huge fine and jail time.