On the spectrum of sex crimes and in particular, child sex crimes, Jared Fogle’s case is pretty serious. It has all the elements that make a case aggravated. Multiple victims; offenses that are not isolated events, but rather span many years; not only possession of child pornography, but production and distribution as well; and of course, traveling to other states for sex with minors.
This case is bad. Not the worst I have ever seen, but bad.
In an effort to do all he can to avoid the hefty prison sentence he deserves, Jared is not only pleading guilty at the first opportunity, but he is also paying $1.4 million to his 14 victims.
Do You Think That’s Right?
What are your thoughts on the payment of money to victims? Is he trying to buy his way out of trouble? Is it an unfair advantage he has over an indigent person who would be in the same circumstances? Is this turning into a case of the rich pay their way out of trouble?
Or on the other hand, don’t these kids deserve every penny he has to offer? Won’t this money go to good use whether for counseling, education, emergency money, whatever?
Should the criminal justice system accept money from offenders to compensate victims in cases like these, knowing that a reduction in sentence must be reciprocated? When I say “must”, I am not referring to a legal obligation. Jared could pay a hundred million dollars to his victims and the judge can still lock him away for the maximum sentence.
Instead, what I am referring to is a question of judicial policy. If criminal defense lawyers had the experience that paying restitution to victims did nothing to help their client’s cause, then criminal defense attorneys would never advise a person to make such payments and victims of crime would be left with nothing.
As is typical in law, the criminal justice system is faced with competing interests when it comes to such payments. In an ideal world, we would want defendants to pay as much money as possible to victims of crime to compensate them for their injuries while at the same time delivering the most severe prison sentence possible.
In reality, however, a choice must be made.
Now, I am not saying someone like Jared should be able to pay $1.4 million dollars to victims and avoid prison altogether. Clearly that is not on the table and is not a reasonable outcome. Jared will be going to prison.
Instead, do you think it pays to incentivize offenders by giving them a reduction in sentence, whatever that may amount to in any given case, when they voluntarily pay substantial compensation to their victims?
Is this a decision we should leave to judges? To prosecutors? To the victims? Should the U.S. Congress or state legislatures pass laws that require a reduction in sentence when victims are compensated on this level?
Believe it or not, victims often times present very different perspectives. Some are all about the money and don’t care about anything else. As soon as they hear a check is coming, they all of a sudden strop screaming for justice and demand to get paid. In other cases, victims could care less about money. You could present them with a blank check backed by the printing power of the U.S. Mint and they would rip it up in your face. Then of course, there are the victims in the middle – those who will meet you half way.
For Jared and the prosecutors handling his case, the problem presented is due to the fact that there are 14 victims. To get all 14 parties on board is virtually impossible. My instinct tells me that is one reason why the plea agreement named a broad recommendation of 5 to 12.58 years as opposed to a more specific number.
Personally, I think 5 years is way to low and the defense will lose credibility with the Court if it asks for that amount. Equally, I am perplexed as to why prosecutors agreed to such a low number on their end. Personally, I would expect someone like Jared to get sentenced in the 15-30 year range, given the variety of offenses committed and the multiple aggravating factors they present… Not 5-12.5 year range enumerated in the plea agreement.
First time offenders with a typical run-of-the-mill possession of child pornography case and nothing else, typically are sentenced in the area of 4-6 years in prison, depending on the circumstances. Adding the elements of surreptitious production, distribution online, failure to report to police, knowing the victims, and of course meeting teens for sex in other states, you have to assume Jared is getting a double digit prison sentence.
At the end of the day, the sentencing judge will need to weigh the seriousness of the offenses in light of how his sentence will not only serve to punish the defendant, but also instill respect for the law and serve as a deterrent. In so doing, the judge will also need to consider the mitigating effects, if any, of Jared’s early acceptance of responsibility and plea of guilty, coupled with his voluntary monetary compensation to the 14 victims.
What Would You Do?
If you were the sentencing judge, how much time would you give Jared? Don’t answer with life in prison or drag him down the street by the fender of a car until he dies, because neither are realistic. Consider the true job that this judge must perform in court and the awesome responsibility he/she has.
On the one hand, the sentence must punish the offender, instill respect for the law, and act as a deterrence. On the other hand, as a matter of judicial policy, offenders should be encouraged and incentivized to compensate victims of crime above and beyond the norm when an offender is capable of doing so – but by how much? How many years off a sentence is $1.4 million dollars worth?
You should also consider the fact that the 14 victims certainly agree that a prison sanction between 5 and 12.58 years would be appropriate – we know this, because prosecutors would have never agreed to that range without first obtaining the consent of the 14 victims.
After weighing all the aggravating factors and counter-balancing them with all the mitigating factors, how would YOU sentence Jared?
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