After an AIDS vaccine researcher was sentenced to five years in prison for spiking samples, our co-founders Ivan Oransky and Adam Marcus raised an important question: Should we criminally prosecute researchers who commit misconduct? (So has Richard Smith.) In last fall’s special issue of the Journal of Information Ethics, Michael Hadjiargyrou at New York Institute of Technology, said: yes. Tell us what you think in a poll at the end of our discussion.
Retraction Watch: Did any particular event prompt this article?
Michael Hadjiargyrou: Yes, the higher incidence of paper retractions as well as data from the Office of Research Integrity (ORI) that clearly shows an increase in reports of scientific misconduct.
RW: Why aren’t current sanctions for misconduct enough, in your opinion?
MH: Because they do not go far enough. In clear cases where the scientist, using taxpayer money has consciously committed scientific misconduct, he/she should be held to the same standards as those applied to any other citizen who steals money. Using taxpayer money to enrich your lab or even yourself (by paying part of your salary off the grant) and cooking the data amounts to theft. And theft is punishable under the U.S. penal code.
RW: Why do you believe felony prosecutions are a good approach for researchers who commit fraud?
MH: Because we need to end this ever-increasing cycle scientific misconduct. Clearly, the current sanction approach is not working and thus it does not serve as a deterrent. Perhaps, felony prosecutions will do just that, that is, to prevent scientists from committing scientific misconduct while using taxpayer money to serve their own interests.
RW: You say that researchers who commit fraud shouldn’t be “above the law” – is there any aspect of the law that could justify criminally prosecuting someone who commits misconduct? Something in the criminal code, perhaps?
MH: Yes, as I mentioned in my manuscript, there are various levels of felonies depending upon the magnitude of the crime. The penal code is a good place to start to develop a new penal code for scientific misconduct (developed by academic scientists with legal advice by lawyers) that is certainly more potent than the current “sanction-based” one.
RW: Are there lesser punishments than jail time that could act as suitable deterrents? Such as fines, stripping a researcher of his or her degree, etc?
MH: That depends on the new penal code applied for scientific misconduct. Personally, I would not advocate stripping anyone from their degree as the two events are not related (unless it is proved that the individual committed scientific misconduct during their dissertation research – if that is the case, then yes, the degree should be stripped). Obviously, a ban from conducting scientific research should be considered, again depending on the severity of the misconduct and on the penal code. Another suitable punishment is to be terminated from the current academic (even if tenured) or industry position.
RW: Are there some types of misconduct that don’t warrant felony prosecutions, in your opinion?
MH: Yes, for inadvertent mistakes in data analysis and interpretation that may appear initially as if someone committed scientific misconduct. Also, there are many cases where scientists “cut corners” (i.e. not having the appropriate controls, deleting outliers, etc.) and these do not warrant prosecutions.
RW: Do you believe anonymous whistleblowers — by also taking up valuable time and resources — should be prosecuted if their complaints reveal themselves to be unfounded?
MH: No, we should not be prosecuting whistleblowers since we already know that very few people serve as whistleblowers to begin with. I am not sure how many such cases exist or occur per year but I imagine they are not the norm and are extremely small. Also prosecuting whistleblowers will further inhibit others from coming forward to report legitimate cases of scientific misconduct.
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Make it clear that the federal program and oversight agencies (like NIH or ORI in HHS) cannot prosecute such penal code crimes — only the federal Department of Justice (DoJ) can do so.
Why the nasty negativity about whistleblowers? (IE: Your only mention is a thinly veiled suggestion that whistleblowers be “prosecuted!”)
There are two legal remedies to stop fraudulent science: first is criminal prosecution. The second is civil suits–under the Federal False Claims Act (also known as Qui Tam).
Qui Tam allows any person to bring a case to the Dept of Justice. Someone who has inside knowledge of “false claims” made in order to receive federal funds, with the assistance of a lawyer, presents their case to the DOJ. The DOJ then pursues the fraudster and his corporate support structure, and claws back the federal funds obtained by fraud.
The whistleblower then receives a portion of the funds recovered from the fraudster.
This is the most efficient and effective way to fight fraud. Especially organized and conspiratorial fraud as carried out in research labs.
Details:
http://www.forbes.com/sites/brettjoshpe/2013/11/07/blowing-the-whistle-on-the-chamber-of-commerce/#755241b15daf
Yes, anyone can bring a federal False Claims Act suit to the US Department of Justice – but DoJ is not obligated to pursue the relator’s suit – in fact, only a small fraction are pursued by DoJ, based on its own estimate of how many 100’s of thousands or millions of dollars that the Government might recover from the institution where the grant or contract was awarded – and the strength of the evidence of fraud. It is not easy to convince a US Attorney to spend the hundreds of hours and hundreds of thousands of dollars needed for the AUSAs and staff to prosecute a case.
However, some ORI cases have arisen in connection with qui tam suits, like the one involving massive decades-long fabrication and falsification of biomedical research data by Professor Eric Poehlman at University of Vermont, whose undergraduate technician filed a suit and recovered damages and legal fees, and Poehlman was fined and sent to prison by DoJ and was debarred by ORI for his lifetime.
Alan,
100% correct. But what you’re missing is the field-leveling effect of lawyers who specialize in Qui Tam willingness to pursue cases FOR FREE (on a contingent fee basis).
This gives those with insider knowledge of fraudulent research (starving grad students?) access to legal representation to pursue the malefactors.
The level of the fraud–measured in millions of dollars–will determine the interest of lawyers to take a case. But there are always lawyers willing to go for the relatively small fish.
The profit motive, allowing private parties to share in the government’s recovery of funds, is what drives Qui Tam.
Read the question. The negativity is specifically regarding “whistleblowers” whose claims turn out to be false.
Bobo,
Thanks for your guidance. I’m pretty good at reading! I’d suggest you grasp the context.
The ONLY mention of whistleblowers, in a discussion about identifying, and punishing fraudsters, was in a negative light.
Whistleblowers are the most effective, efficient, and useful tool for uncovering and litigating research fraud.
The mission of anyone who deals with fraud in research should be to encourage and publicize the potential rewards of whistleblowing–for society, for research, for science, for academia, for individuals.
RW has highlighted the Qui Tam process in the past, but this was a missed opportunity.
One need not go that far. Federal prosecutors are not going to magically appear for the sake of what is effectively a pet peeve. The “new penal code for scientific misconduct (developed by academic scientists with legal advice by lawyers)” is complete fantasy, as are the follow-on suggestions that the FCA has anything to do with the price of tea in China.
Narad,
“…complete fantasy, as are the follow-on suggestions that the FCA has anything to do with the price of tea in China.”
Fantasy? The False Claims Act (FCA) was designed for situations like this.
Nearly all academic research is carried out under federally funded contracts. Fraud in any federally funded contract is precisely the point of the FCA.
As someone earlier noted, “…qui tam suits, like the one involving massive decades-long fabrication and falsification of biomedical research data by Professor Eric Poehlman at University of Vermont, whose undergraduate technician filed a suit and recovered damages and legal fees, and Poehlman was fined and sent to prison by DoJ and was debarred by ORI for his lifetime.”
Nothing to do with the price of eggs in China. However that case is a model of the exact precision and power of a whistleblower using the FCA to expose contract fraud.
Try filing a suit for qui tam and see how you make out. The courts don’t understand the science and the False Claims Act was written during the civil war for stealing mules. Most “Relators” have failed along with suffering the contempt (or the “so what” attitude) of their fellow scientists. The law needs to change.
Helene,
The law is nearly perfect, or as perfect as laws get.
You’re describing the imperfection of human beings…..” Most “Relators” have failed along with suffering the contempt (or the “so what” attitude) of their fellow scientists. The law needs to change,” not the imperfection of the law.
Just like investigating any closed conspiratorial group, it is nearly impossible to gain access to the truth without an insider/whistleblower. The FCA (Qui Tam) rewards those who take the step, and succeed.
And there are many, many, many success stories, including successful suits against employers who retaliated against whistleblowers:
http://www.quitamteam.com/success-stories/
” Feman v Fresensius Medical Care AG, District of New Jersey , CA No. 98 – CV- 02292. Former employee successfully sues for retaliation for investigating False Claim under subsection 3729(h) of the False Claims Act despite never having filed a False Claims action.
United States v Health Ventures, Inc., Eastern District of Pennsylvania , CA No. 3432. National nursing home operator liable for million plus judgment as a result of qui tam relating to improper cost reports and improper coding.”
And more….
“The Department of Justice recoveries from False Claims Act cases exceeded $3.5 billion for the fourth consecutive year. This brings the total False Claims Act recoveries from January 2009 to the end of FY 2015 to $26.4 billion…particularly after the federal False Claims Act was modernized in 2009. Indeed, qui tam recoveries in the past five years account for half the settlement dollars recovered under the modern False Claims Act.”
http://www.whistleblowerfirm.com/qui-tamfalse-claims-act/success-of-the-false-claims-act/
Absolutely!!! They take taxpayer money to destroy the scientific record, mislead medical
caregivers, and are responsible for serious health injury in many cases. Want to get philosophical about that? If so you are “in the tank” with them.
If this deliberate misinformation is treated like perjury which prosecutable, less of this lying would happen.
The price for doing that will be very high. Wherever lawyers are involved there is an onslaught of bueraucracy. If scientific fraud becomes a crime, there will be reporting standards (set by lawyers) there will secure servers for your labdata, There will be people accusing their competitors, Science will loose a lot of its flexibility and many aspects of science will be controlled by lawyers and not by scientists. In medicine we have that effect already and it is called “defensive medicine”, It makes medicine much more expensive and it will make science much more expensive. Be careful what you wish for.
Imagine that the results of these research publications is like the spring that fed the reservoir where people get their drinking water. These reservoir of information is the source where knowledge are obtained, from which decisions and treatment are made. Like the precious source of water supply it should be guarded and anyone trying to poison it should be prosecuted.
See this paper as well:
Redman BK, Caplan AL. Off with Their Heads: The Need to Criminalize Some Forms of Scientific Misconduct, J Law Med Ethics 2005; 33:345.
Alan Price rightfully points out that ORI does not have the power to prosecute such serious offenders, however, as in a recent case of a researcher from Iowa State University, cases can be referred to the Office of the Attorney General for prosecution.However, it took the intervention of Senator Grassley from Iowa to initiate the process.
It should not require such high powered intervention to prosecute those who have misused large sums of Federal funds, and in some cases, endangered patients in clinical trials.
Don
I agree with Don on this for such much mores serious misconduct cases
The very case of the ISU researcher cited here demonstrates that selected acts of research misconduct can already be prosecuted as a crime as long as it meets the required legal elements. The wheels are already on this cart. There is no need for a blanket criminalization of research misconduct.
Criminalizing Research Misconduct is a banner in search of a parade. Many kinds of research misconduct are not “fraud.” And why talk about “Inadvertent mistakes in data analysis and interpretation” since they are specifically excluded as being research misconduct?
This call appears to be premised on addressing the belief that Research Misconduct and retractions have become epidemic. Their numbers have indeed increased, but in 2015, the incidence of Retractions/journal article was still 20-30 fold less than the generally accepted 1% level of sociopathy. If the latter is just human nature, then the basis for creating “deterrence” to stem the former is unclear. Would Retraction Watch advocate criminalizing the conduct of science if the increase in the Retractions is simply a consequence of heightened transparency, i.e, of a reliance on Images data in research? ORI has long sought a clear metric to track the incidence of research misconduct, but so far it hasn’t. (Intriguingly, Elizabeth Biks’ image survey may address that need, depending on the details of her sampling method).
More problematic though is that criminalizing research misconduct will make questioned research less transparent, since scientists will be more hesitant to report their concerns. (Recall the benefits of anonymity in Post Publication Peer Review.) If an allegation must considered under the criminal statute, it will be harder to ‘prove’ since the standard of proof in criminal law (“beyond a reasonable doubt”) is so much higher than that governing research misconduct (“preponderance”, used in Administrative Law). Integrity of the literature will suffer since many journals still cede decisions about retraction to the results of investigations that are made public only if there is a finding.
Obviously there should be statute law on biomedical research fraud, but what evidence is there that the journals will take this up? Certainly, in the UK, where there are no bodies charged with investigating misconduct whatsoever (excluding various institutional codes involving expensive self-investigation that they don’t want to do in the first place) the journals simply do not want to get embroiled in these kind of issues.
Basically, investigations would consume a great deal of time and money. Much better for these generally parasitic behemoths to publish other articles by different groups to the authors of the fraudulent material and leave the criminality there on the pages.
I think it will take a major public health disaster, impacting on many thousands, or millions, before this will be confronted as it should be.
In instances where there is a clear pattern of misconduct and in which taxpayer dollars are involved, it should be treated as a case of fraud. Our current system essentially puts people “on probation” without any real penalty. I can see this as the appropriate course of action for a single bad decision, but those who try to build their careers on lies should be subjected to much harsher penalties. I believe a felony conviction is justified in the latter case, even if there is no jail time involved, plus a lifetime ban on federal funding. At present, the penalties for tainting the scientific record are wholly insufficient.
Totally agree.
Prosecution followed by criminal punishment looks attractive. Nevertheless, law and ethics may not be compatible in all instances. An acquittal thanks to a legal loophole in an otherwise obvious ethical misconduct case, will put the scientific community in a vulnerable state, as the culprit gets the chance to sell his/her case.
Like Michael Hadjiargyrou and others, I have always felt that the current system of debarment used in the US does not ‘go far enough’. Thus, I voted yes. But after reading John Krueger’s post I do wonder about the repercussions of criminalizing research misconduct. Would an increase in criminal prosecution of scientists address the fundamental reasons that underlie research fraud? I don’t think so. My understanding is that punishment is not as good a deterrent of crime as is the perception of getting caught. Thus, reinvesting the funds that would be needed for criminal investigations, prosecutions, etc., into efforts to 1) increase detection of research misconduct and 2) address its underlying causes (e.g., competition due to research funding not keeping up with demand, oversupply of researchers and not enough positions for them) would not completely solve our problems but, in my view, would certainly be a better investment of our money and a better option for science.
BTW, am I the only one who sees parallels between the outcome of this vote (as of this writing 82% in favor) and the Brexit vote?
As is usual, Miguel summarizes the larger concerns far better than I did (or can)! Certainly, the research community is well justified to ask if the PHS sanctions have been getting inexplicably weaker in the last several years (IMHO they have). But even accepting that, and considering consequences of criminalizing research misconduct, let’s not ignore the lessons of the (wrongly-called) ‘Baltimore’ case: A case that involved investigations by three separate federal agencies of the same individual. As for NSF OIG, DOD, or DOE investigations of their questioned research, well . . . no one really knows.
While I support the idea that research fraud should be a crime, it would be difficult to prosecute. For example, there are many instances of rogue lab members who do the misconduct on their own. In other instances, it is clear that the lab head encourages the fraud. Who to prosecute and how would be challenging.
BTW, research fraud is far worse than simple embezzlement. The government would be wasting millions of our tax dollars funding fraudulent research and the results of the fraud (in fake publications) will cause millions in grant money in other labs be wasted. In addition, the valuable time of honest researchers will be wasted and that will delay discoveries that could reduce human suffering. Someone who simply steals money from a bank will not have nearly the negative impact on society. With proliferation of thousands of fake journals and companies that generate fake papers for researchers (common in Asia), research fraud is out of control.
Another question is what to do when medical research that is fraudulent has adverse consequences for patients. For example https://en.wikipedia.org/wiki/High-dose_chemotherapy_and_bone_marrow_transplant Should they be charged with one of the forms of assault or manslaughter?
Again, in the USA, committing what is “research misconduct” (as defined under Administrative Law) does not preclude its prosecution under the criminal statutes, so long as the requisite legal elements that define a specific crime are met. To get a first-order answer as to whether an action is a crime, look up the definition of “manslaughter” or “fraud” in a legal dictionary (like ‘Blacks’). Generally, the bulk of what is called research misconduct does not meet the requirements, but that is not to say that something wouldn’t.
Hopefully that is something that will come to the attention of lawmakers and they will make sure that it is treated appropriately. After all, if someone for example hides the fact that a medication occasionally produces severe allergic reactions and then someone dies as a result of one then they are just as dead as they had been killed with a gun.
Andrew Wakefield comes to mind. He should be charged with a crime every time a baby with measles dies.
And he could have been, yet wasn’t. Fiona Godlee, editor of BMJ, openly advocated for this at an NIH talk soon after the matter ‘fannulated.’ The issue here, for better or worse, devolves to the fact that it is the authorities in the public sphere who decide whether to prosecute, fully outside of the opinion of the scientific/research community. Consider the Iowa case at the start of this thread, and consider the role of the senior politician from Iowa!
Clarification: Godlee advocated treating it as a crime.
Without doubt, fraud of any kind should be penalized. However, before talking punishment we should ask how will personal responsibility be established in each case in the absence of a confession – we’ll end up prosecuting Ph.D. students and postdocs while PIs can always claim ignorance and therefore innocence. I would rather echo Miguel Roig that we should focus on detection and prevention rather than prosecution and punishment. We should examine the reasons (many of which are known) behind scientific fraud and introduce adequate changes in the science model that address these reasons.
Now high rewards are combined with poor low detection rate and negligible consequences.
1.) With a little massage of the data, one’s career can skyrocket, they can stand up from the phd crowd, get a permanent position, win millions of grant money.
2.) And if you detect the fraud, then what? A pat in the back! You can always claim honest mistake, blame it on a contaminated machine or a phd student. It’s a pain to get someone to even retract a single paper, yet to uncover systematic fraud is an even worse.
3.) And if you’re so dumb to get caught, than what happens? High-rank fraudsters rarely loose their seats, they get a 1-3 year ban from funding, but don’t even have to repay their current grants. For phd/postdocs, issues are usually dealt silently so they can continue where they left in a new place or move to industry with a clean record.
So I think, we can’t limit ourselves to detection and prevention. However the authorities between the university, PI and staff should be set so that it’s in everyone’s favor to uncover the fraud and maybe depend on their behavior during the investigation.
I have to agree that detection and prevention are not enough.
Both, Hadjiargyrou’s paper and the bulk of this discussion center on the criminalizing of research misconduct within the US legal context. True, relative to other countries, more papers published by US-based researchers are retracted for misconduct. However, the ratio of retracted papers over total papers published is actually higher in other countries (table 2, http://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1001315). Thus, I think there would be an expectation that, eventually, each country would need to develop its own criminal code to deal with misconduct (see also http://www.the-scientist.com/?articles.view/articleNo/35676/title/Misconduct-Around-the-Globe/). Given that about half of the top research and development countries do not even have a national research misconduct policy (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4449617/), I have my doubts that a criminalizing strategy (see John Krueger’s and others’ posts), especially one that fails to have global reach, is a practical approach. Perhaps a better option is for major funding agencies and editors of legitimate journals [(see the comment by FJScientist in The Scientist article); also data archives and other emerging publishing outlets] get together under the auspices of a major global organization (UNESCO? WHO?) to develop a system such that those identified as having committed misconduct (and/or strongly suspected of such) are simply prevented from disseminating their fraudulence. I am sure that there are difficulties with this alternative approach, but it seems to me to be a much more feasible option than altering the legal system of the US, let alone that of every other country.
It’s just an idea.
There will be a very steep price to pay for science for this type of prosecution. Wherever lawyers are involved there is an onslaught of bueraucracy. If scientific fraud becomes a crime, there will be reporting standards (set by lawyers) there will secure servers for your labdata, There will be people accusing their competitors, just to make their life difficult. Science will loose a lot of its flexibility and many aspects of science will be controlled by lawyers and not by scientists. In medicine we have that effect already and it is called “defensive medicine”, It makes medicine much more expensive, less flexible and degrades its quality. Prosecution will make science much more expensive in terms of time and money. Lawyers and their bureaucracy will do way more damage than the few black sheep will do. Be careful what you wish for.
Very wise observation, Michael
Very wise observation, Michael
What about the University management, Journal editors etc who does not like to help nab the culprit? they should also be in cell with fraudster. They sometimes help the fraudster, in order to save their own skin (reputation of University, or journal)
Here we are dealing a worst scenerio, scienitific miscounduct is done by highly educated person, resulting a huge amount of loss of resourcs and opportunity, and we are still thinking if he should be proscecuted? what an irony.
It would probably be hard to justify charges against them, but I agree that they are “accessories after the fact” in many cases.
I agree….when the universities, the journals and the funding agencies become aware of a fraud and choose to do nothing they are no better than the fraudsters themselves….but there is no agency within our government that will hold them responsible when it becomes clear that they wish to preserve their neutrality and do nothing.
If you want to know how lawyers and politicians, who will be the ones doing criminal prosecution, treat the scientific culture of fact finding please read today’s nature issue. Scientist will have to deal with cheaters on their own.
http://www.nature.com/news/fantasy-politics-over-fetal-tissue-research-1.21263?WT.ec_id=NATURE-20170112&spMailingID=53176252&spUserID=MTM2NTM3MDM4NDk1S0&spJobID=1082042362&spReportId=MTA4MjA0MjM2MgS2
If grants and contracts were obtained as a result of fraud, the money should be returned — but I doubt that will ever happen.
There are cases where grant money is refunded to the federal government…when fraud is involved, but it usually takes the DOJ to sue the funded institution on behalf of the tax payer under the FCA (false claims act)….but they rarely do when it comes down to academic fraud in basic research, funded by grants. It is even more rare for the DOJ to seek criminal prosecution. ORI rarely forces the refunding of NIH grant money and predominantly bars the alleged criminal from applying for grants for three years at the most. If a whistleblower files a qui tam action or suit under the FCA on behalf of the Fed Govt and if the DOJ joins in ….and if they win, then the institution receiving the funding is responsible for refunding treble damages back to the Feds. I know of no qui tam actions filed against universities by the DOJ or by the harmed scientist that have succeeded when it comes to academic fraud involving funded grants. There is scarce case law as the courts do not wish to take on academic fraud cases under the FCA. Berge v. the University of Alabama was lost on appeal. The courts usually throw these conflicts back to the universities for resolution…..where there is no chance of due process. When the universities, the ORI, the DOJ and the courts create insufficient oversight it is up to us, the scientists, to set up standards of our own in order to police ourselves. We should not tolerate the lack of diligence and oversight that exists today….. we should join together to create and demand a higher standard of care from our government and our institutions. In general scientists do not wish to rock the boat …for fear of retaliation and harm to their careers but remaining neutral is doing great harm to science in general. After all NIH doles out 34 billion dollars per year in grant funding…and it is considered insufficient to meet our needs. Think of how much money could be saved and how much great discovery could be made if there were real consequences for those guilty of scientific misconduct, waste, fraud and abuse and what if all that wasted grant money went instead to those deserving of it!
You hit the nail right on the head, JE Rosen! Thank you!
Jane, ORI has NO authority to force institutions to return NIH grant funds. Only NIH can make such demands, or DoJ through the court.
ORI may not have authority to force academic institutions to return NIH grant money but they certainly have the ability to inform the DOJ or the OIG of findings of misconduct in funded grants – to insure proper oversight of alleged frauds involving taxpayer money. Not having authority to force the refunding of monies does not absolve ORI of its moral obligation to inform other government agencies who do have authority to protect both the injured scientists as well as the government and the tax payer.
Jane, ORI does do that — and has done so since we started ORI in 1992, when we in:
1) ORI held monthly meetings on all our investigative cases with HHS OIG staff from DC, which is the official route to DoJ
2) ORI published all our ORI findings, naming the person who committed research misconduct [unlike NSF and others who do make public findings with names] and exactly what data and papers that person falsified or fabricated, openly in the Federal Register (as the official Government site for official announcements, fully visible to anyone in DoJ), and available to everyone in the world on ORI’s website, in the NIH Guide Grants and Contracts and on NIH’s website, and in ORI’s Newsletters)
3) ORI responded to numerous DoJ requests for our scientific investigative advice on the strengths or weaknesses of qui tam suits filed be individuals in the name of the Government for alleged false claims in NIH grant applications, as to whether DoJ should consider taken on the prosecution.
Thus ORI has for all its 14 years of existence fully informed OIG, DoJ, and the academic institutions and the public on its findings, so they could determine whether they wanted to pursue them further under their own authority, e.g., to prosecute or recover grant funds.