Mimesis Law
19 April 2019

Jared Fogle, A Slightly Harsher Sentence for a Pretty Typical Defendant

Nov. 20, 2015 (Mimesis Law) — Former Subway spokesman Jared Fogle is going to do fifteen years and eight months in prison for sex crimes involving minors:

A judge sentenced former Subway pitchman Jared Fogle to more than 15 years in prison on Thursday for trading in child pornography and having sex with underage prostitutes.

U.S. District Judge Tanya Walton Pratt disregarded prosecutors’ recommendation that Fogle get 12 1/2 years behind bars, opting for a stiffer sentence of 15 years and eight months and ordering him to pay a $175,000 fine. She could have sentenced him to up to 50 years in prison.

My initial reaction is the one that I always have whenever I hear about sentencings anywhere other than in Arizona’s state courts, and that’s a general feeling that the sentence isn’t really that harsh. After all, I’m accustomed to Arizona’s mandatory prison sentences of ten to twenty-four years per image or video, and the sentences must be consecutive. The pleas reflect the incredible leverage that gives prosecutors. As is often the case, the mandatory minimum anchors what prosecutors are willing to do. And Jared actually had sex with minors, too. A decade and a half isn’t as bad as it could be.

My next reaction is the second one that I always have whenever I hear about sentencings anywhere other than in Arizona’s state courts, and that’s disbelief at how reasonable prosecutors elsewhere can be. It’s sad, but anytime a prosecutor recommends anything other than the maximum, I’m a bit flummoxed. Demanding the max seems like all they do in state courts around here. Many of them would probably be embarrassed beyond belief to have a judge impose a harsher sentence than they recommended. I can just imagine the objection: “your honor, this is wildly inappropriate; it’s my job to be harsh!”

But the oddness of the whole situation from an Arizona lawyer’s perspective aside, why was it that the judge gave a harsher sentence?

In explaining her sentence, Pratt noted how fortunate Fogle was to land his lucrative deal to be Subway’s spokesman after losing a lot of weight in college.

“What a gift, to have such a professional windfall fall in your lap,” she said, adding that Fogle was living a double life for many of those years.

I can’t say I’m impressed with the judge’s reasoning.

Being fortunate enough to lose weight, get noticed, and get a lucrative deal as a spokesperson for a major company like Subway is pretty awesome. It has absolutely nothing to do with being sexually attracted to children, though. Jared was lucky in some ways. He was super unlucky in others. If given a choice, I bet he’d have gladly given up his attraction to children, but it doesn’t work like that. Normal people with normal preferences just don’t wake up one morning and say, “I’m going to look at child pornography and have sex with underage prostitutes today.” People like Jared can’t just wake up one morning and change how they feel either.

Also, talking about a defendant “living a double life” is one of the most irritating and nonsensical things judges regularly do at sentencing. It’s because it’s almost always in the context of aggravation, just as it seems to be with Jared. Would the judge prefer that he just be a bad guy all around? That his life consist of nothing but constant criminal activity and treating everyone like crap?

The fact that judges feel the need to comment on someone living a double life suggest to me that they hold the opinion that all-evil, all-the-time people are not just out there, but that it’s noteworthy when someone standing in front of them isn’t that sort of person. It’s indicative of a view that criminals are criminals, not flawed people just like the rest of us who happen to have committed a crime due to their own set of flaws.

A professor appeared by phone to discussed Jared’s flaws:

Bradford said he analyzed Fogle on Aug. 17, two days before Fogle agreed to his plea deal, and concluded that Fogle suffers from hypersexuality, mild pedophilia and alcohol abuse and dependency.

Like I mentioned before, it’s not like Jared had a real desirable set of personal issues. The professor elaborated:

Bradford said he concluded that Fogle suffered from “mild pedophilia.”

“I did believe that he did suffer from pedophilia, but it was pedophilia that did not involve acting out that with a child.”

In his plea deal, Fogle admitted that had sex at New York City hotels with two girls under age 18 — one of whom was 16 at the time — and paid them for that sex. He also acknowledged receiving child pornography produced by Russell Taylor, the former executive director of the Jared Foundation, a nonprofit Fogle started to raise awareness and money to fight childhood obesity.

Authorities said Taylor, using hidden cameras in his Indianapolis-area residences to produce child pornography, secretly filmed 12 minors as they were nude, changing clothes, or engaged in other activities. Taylor has agreed to plead guilty to child-exploitation and child-pornography charges.

Jared actually seems like a pretty typical defendant with the same charges. It might seem odd that someone who both possesses sexual images of minors and acts out on the same feelings would only have “mild” pedophilia that did not involve acting out that with a child, but it makes sense considering two other factors that seem to be present with Jared.

The first is his alcohol abuse and dependency. As is often the case, any sort of latent issue, whether it’s hypersexuality or pedophilia like in Jared’s case, or just a bad temper or financial stress like in countless other criminal defendants’ cases, substance abuse only makes it worse. Had Jared been a teetotaler, he may well have never offended. The reduction in inhibitions caused by alcohol can bring all sorts of things to the surface. Long term abuse opens up an even more complex psychological can of worms.

The second factor is Russell Taylor. Sex crimes, like almost any other crime, can be ones of opportunity. Had he and Jared never met, maybe neither of them ever would have ever felt comfortable enough to act on their feelings. Maybe Jared wouldn’t have obtained the pornography if it hadn’t been so easy. Maybe Russell wouldn’t have produced it if he didn’t have an interested consumer in Jared. Maybe not, of course, but the possibility is worth considering.

Interviewing clients, I’m always surprised just how many of them say it happened because of bad influences. On one hand, it’s easy to dismiss that as shifting blame. It does seem at times like courtrooms are filled with the victims of bad influences but not any of those bad influences themselves. Reality is probably a little more complicated. Everyone is both the influencer and the influencee. Either way, Jared wasn’t all alone, and I doubt anyone is going to argue that his friend didn’t have some influence on him committing the offenses.

So Jared had substance abuse problems, some psychosexual issues, and a seriously bad influence in his life. Although fifteen years and eight months doesn’t seem so bad to an Arizona lawyer, it was apparently intended to be an especially harsh sentence. Given Jared’s all too common circumstances, though, it’s hard to say anything other than his celebrity makes him different from any other defendant in his situation.

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