Federal judge Tanya Walton Pratt, widely regarded as the toughest in Indiana’s southern district, will send Jared Fogle to prison Thursday.
The big question: For how long?
As soon as the judge pronounces the former Subway sandwich pitchman’s sentence — whether the minimum of five years, the maximum of 50 or something in between — another question will inevitably follow.
Did Fogle receive special treatment as a wealthy celebrity, or was he treated more harshly because of his fame and the nature of his crimes?
As one of the highest-profile child porn prosecutions in U.S. history is set to conclude at 9 a.m. Thursday in Room 344 of the federal courthouse in Indianapolis, The Star examined several aspects of Fogle’s case and fate. That included a review of factors that go into determining a sentence, what happened in similar cases and the potential conditions of Fogle’s imprisonment.
Fogle agreed to plead guilty Aug. 19 to one count of possessing or distributing child pornography and another of traveling across state lines to engage in sex with a minor. His Indianapolis-based attorney declined comment to The Star.
As part of a plea deal, prosecutors capped their request for prison time at 12 1/2 years. Fogle is asking for five years. In determining the sentence, Pratt is bound only by the federal parameters of five and 50 years.
Her decision, part of a proceeding that likely will take an hour or more, comes against the backdrop of a broader legal and societal debate over how to deal with child porn criminals.
On visceral and political levels, Fogle’s crimes invite cries for harsh punishment, and federal guidelines have reflected that revulsion. But many, from defense attorneys to judges, think the guidelines are out of control. About 70 percent of federal judgessurveyed in 2010 said proposed sentence ranges for possession and receipt of child pornography — those who only viewed the porn — were too high. They often gave sentences below the recommended levels.
That’s what Fogle’s attorneys are requesting, based on what they say are “flawed and widely criticized” guidelines created by pandering politicians. Getting that break from Pratt, however, might not be likely, according to Indianapolis defense attorney John Tompkins.
“She more consistently comes out on the high end of the guidelines than the other judges in the district,” Tompkins said.
No two child pornography cases are exactly alike, making comparisons difficult. Among the many factors a judge considers: prior offenses; the number of images; the length of time they were collected; the age of the children; whether the defendant created the images; whether the defendant could have stopped their production; and the likelihood of the person becoming a repeat offender.
Then there’s a whole other level of seriousness — when a person’s interest in children moves from looking at pictures to touching or engaging in sex.
That is what Fogle has admitted to doing, and it puts him among a tiny minority of those convicted on child porn charges.
Mark M. O’Mara, a Florida attorney and CNN legal analyst, said that is where Fogle’s peril lies.
“When you travel to have sex with a minor, it doesn’t get much more serious than that,” O’Mara said. “On a charge like that, you could be looking at a decade or two in prison on the low end.
“Most judges don’t like adults who have sex with children. And I don’t think he will get much benefit of the doubt.”
Fogle’s secret life began to unravel April 29, when police arrested Russell C. Taylor, former head of The Jared Foundation, on preliminary child pornography charges.
But Fogle’s interest in sex with minors went back to at least 2007, a year before Taylor became head of the foundation, according to court documents. Fogle frequented online sites with ads for escorts or erotic services. He often fed his desire during business trips, trying to arrange his illicit encounters around his schedule promoting Subway and his foundation.
After Taylor took over The Jared Foundation, prosecutors said, Fogle’s illegal activities accelerated. That included viewing images recorded by Taylor, who had multiple hidden cameras in his home. He recorded children, ages 9 to 16, changing clothes, showering and bathing. One of the videos depicted more sexually explicit conduct.
He and Taylor even discussed some of the children depicted in Taylor’s videos by name.
Court documents do not give a specific number of images or videos that Fogle possessed, but a filing by his attorney said it exceeded 600, which added about three years to his advisory sentencing guideline. Both sides agree that range is 135 to 168 months.
Fogle also traveled to New York at least three times for sex with prostitutes who were minors. He asked one of those prostitutes to help him find an even younger sex partner.
“The younger,” Fogle told the teen, “the better.”
‘I know, I’m a pedophile’
The letters started arriving within days of Fogle’s plea deal.
There are five in the court record, one from a prisoner who described himself as a pedophile.
The messages are all the same: Pratt needs to take a hard line against Fogle and not let his wealth and fame corrupt justice.
“What a deal,” wrote Scott Petrie, who’s incarcerated at Tucson, Ariz., on child porn possession charges. “I would have jumped on that too because in about 10 years Mr. Fogle will come out of prison, be a multi-millionaire still and will still like little or young girls. I know, I’m a pedophile … I traded child pornography by peer-to-peer software and was given the maximum 40 years. I did not even have sex with a minor as Mr. Fogle has, and yet because he has money he is getting a slap on the wrist.”
Marina Pino of Philadelphia wrote that she’s “angered and disgusted” by the plea deal.
“A child preyed upon and victimized by ‘a stranger in a panel truck’ pales in comparison to his acts,” the letter said of Fogle.
“The same fame and money he used to attract and exploit these minors and children he is now using to lessen his punishment. PLEASE DO NOT ACCEPT IT.”
Fogle’s plea deal included $100,000 in restitution for each of the 14 victims before sentencing. It was the largest amount of money ordered for a child porn or sex trafficking victim in the southern district of Indiana, and one of the largest ever in the U.S.
The young victims, 10 of whom are still minors, also were spared the trauma of testifying in court during a criminal trial.
“The victims in this case would like to maintain their privacy,” said assistant U.S. attorney Steven D. DeBrota, who led the case. “They don’t want to be what everyone is talking about. They’d like to go on with their lives.”
O’Mara, the CNN legal analyst, said prosecutors could have charged Fogle with more child pornography counts, because the law allows for one charge for each picture and for each out-of-state trip for sex with a minor.
“Under the circumstances,“ O’Mara said, “it looks like he’s getting quite a break.”
Shawn Boyne, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis, agreed.
In a way, she said, “the prosecutor’s office has hamstrung the judge a little bit by only charging him with two counts. It may be more difficult (to issue a long sentence) with the recommended cap and just two charges.”
Boyne said she understands why the prosecutor would want to resolve the case with a plea deal, but added the two charges “don’t really represent the full scope of his behavior.”
DeBrota said the government chose to charge the case as a conspiracy instead of a series of counts for distributing individual files. That, he said, allowed prosecutors to get the most they could out of the number of images involved.
“That didn’t do anyone a favor,” he said. “That actually gives you the highest advisory (sentencing) range. This is all very technical. But it’s also done correctly.”
The 12 1/2-year recommended sentence prosecutors negotiated, DeBrota noted, is in the middle of the sentencing range of 135 months to 168 months.
“I think that looking at the breadth and scope of that investigation, people can be confident that we found what there was to find,” he said. “If there’s other information out there that we can only speculate about … we can’t make sentencing decisions based on that.
“I understand people can think what the results should be, one way or the other. But at the end of the day, you have to look at it not on what sentence somebody might want just because it’s their opinion. It’s what sentence does federal law provide for this conduct. There are statutes and advisory ranges and policy and everything else that goes into the answer to a complicated question. It always does.”
The Star’s review of a handful of similar federal cases in Indiana and other states suggests Fogle could receive a sentence between 10 and 20 years, with most of that tied to the charge of having sex with a minor.
Fogle’s actual sentence will be determined by Pratt, who will lean heavily on the contents of a pre-sentencing report compiled for the judge by federal probation officials.
The confidential probation report was filed with the court last month and shared with defense attorneys and the prosecutor, who have reviewed it for accuracy before sentencing.
It will say Fogle has no criminal record and his education includes a degree from Indiana University. It will go on to describe the criminal investigation and how long Fogle was involved in child pornography and sex with minors.
Another component will describe an interview with Fogle, which covered topics such as whether he has remorse for his actions. Medical professionals who have examined or treated Fogle also had input.
Fogle’s attorney began laying the groundwork for favorable sentencing in his comments on the courthouse steps after Fogle’s plea. He continued the themes of remorse and healing in a pre-sentencing memo filed last week.
“He is painfully aware of the fact that he has impacted the lives of minor victims, hurt those closest to him, and, for all practical purposes, destroyed the life he worked to build over the last 18 years,” the court filing says.
The filing describes interactions with various doctors and therapists, including “internationally renowned forensic psychiatrist” John Bradford. He is prepared to discuss at the sentencing hearing that Fogle “suffers from hypersexuality and alcohol abuse/dependence.” He also found “weak evidence” of pedophilia, and that Fogle is “very treatable.”
“An unnecessarily long term of imprisonment will likely hamper or at least delay Mr. Fogle receiving the full benefit of such treatment,” the attorneys argued.
The defense based its request for a five-year sentence in part on sentences issued to other first-time child pornography offenders. Fogle’s attorneys also noted a distinction between engaging young prostitutes and trying to lure victims by “trolling chat rooms, lying about both his age and intentions.”
The unique circumstances of Fogle’s case — knowing some of the children in the photographs and videos, and the underage girls with whom he had sex being prostitutes — carry no significant weight, said O’Mara, the CNN legal analyst.
But O’Mara said Fogle’s actions do seem more reprehensible, morally, because some of the pictures were of children Fogle knew and had interacted with socially.
Prosecutors will certainly note, as they did at the time Fogle was charged, that Fogle could have ended the criminal activity but chose his own interests.
“If Fogle had done the right thing, 13 of those children would have never been victims,”U.S. Attorney Josh Minkler said.