Child Pornography Arrests: Lessons From The Ex-Subway Pitchman’s Sentencing

Jared Fogel went before a federal judge up in Indiana this week with a plea deal in place. The federal district judge didn’t have to rule according to that deal, though, and she didn’t.

At the end of that sentencing hearing before Federal Judge Tanya Walton Pratt, he was sentenced to 188 months in a federal prison on each of the federal sex crimes charges he faced in the indictment, to be served concurrently. Fogel was charged with (1) distributing and receiving child pornography; and (2) traveling in interstate commerce to engage in unlawful commercial sex acts with minors.

Read the full text of the federal indictment of Jared Fogel here.

Judge Exceeding the Plea Deal and the Sentencing Guidelines in Jared Fogel’s Case

So, adding up the counts, Fogel has been sentenced to 15.5 years behind bars. That is more than the prosecutors were seeking (they went into the hearing with 12 years), and it’s a lot more than Fogel’s lawyers were seeking, which was around 5 years.

It’s also more than the federal sentencing guidelines suggested, which was 14 years in total. The judge went over and above that sentencing guideline, which is within her power to do.

Why did she? Explaining from the bench that while she believed Fogel was truly remorseful about his actions and would seek psychological help, the “… level of perversion and lawlessness exhibited by Mr. Fogle is extreme.”

In addition to the loss of his freedom, Jared Fogel was ordered to pay a fine of $175,000. He had already agreed in the plea deal to pay a record-breaking $1.4 Million in restitution to 14 victims (or $100,000 each).

Jared Fogel was taken from the courtroom to a cell. He will be eligible for parole in 2029.

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Three Lessons from Jared Fogel’s Child Sex Crime Sentencing

For anyone who is being investigated for sex crimes like child pornography charges or sex trafficking, there are many sobering things to consider from what happened this week to Jared Fogel.

1. Child Sex Crimes Are Zealously Investigated by All Levels of Law Enforcement

First of all, this was a joint effort of several different law enforcement agencies. Fogel was brought before the court after an investigation was performed at every level of criminal system that applied to him: local, state, and federal forces worked together on this thing. It was through the work of the FBI as well as the Indiana State Police; the Indianapolis Police Department; the Indiana Internet Crimes Against Children Task Force, and the Marion County Prosecutor’s Office that the case against him was made.

Lesson Here:

There are few areas of the law where police and prosecutors are more zealous than crimes involving children. It is not unusual for there to be joint efforts among all levels of government (local, state, federal) working together to find and arrest people on all sorts of child sex crimes, and the advent of the Internet makes their job easier. Much of the evidence against Fogel came from digital, online documentation found on his computer or on his alleged co-conspirator’s hard drive.

2. Plea Agreements and Sentencing Guidelines Aren’t Set in Stone

Second, when Fogel entered the Indiana federal court that morning, he knew that those steps were likely to be the last ones he would walk as a free man for a long time. Undoubtedly, his lawyers explained to him that at the end of the sentencing hearing, he would be taken into custody. He had to know, as well, that the plea agreement hammered out between prosecutors and his defense team would not be binding on the judge and that he couldn’t change his mind and go for a trial, withdrawing his plea, if the judge choose not to follow the plea deal.

Lesson Here:

A plea deal is not binding on the judge (there are a few exceptions to this rule). The federal sentencing guidelines are not mandatory (they were at one time). A federal judge holds great power. Anyone agreeing to a plea deal has to understand the limitations of that agreement, and at the same time, that they are giving up the right to a trial by signing on that bottom line.

3. Going Around a Plea Deal Can Endanger Future Plea Negotiations

Third, there are some who question the sentence given by the judge in this case. After all, the plea agreement was the result of much negotiation between the prosecution and Fogel’s defense team. It resulted in a record-breaking restitution by Fogel, and it included over a decade’s incarceration on top of that. If the U.S. Attorney felt the deal was best for those served by that office, then why disrespect their decision?

No one knows their case like the lawyers who are responsible for trying it. The prosecutor who made this deal understood the nuances of the Fogel investigation and the evidence which resulted from it better than the federal judge — had to have.

Defense attorneys in Indiana for sure, and in other parts of the country, no doubt, may well look upon the Fogel sentence as a concern. How can future defendants be comfortable entering into a plea agreement after the Jared Fogel plea deal was ignored?

Is this a case of making someone convicted of a child sex crime a “public example” or is it a red flag that future sentencing should be harsher in these types of cases?  If so, some questions may result like: why should a defendant agree to a large sum of restitution (like Fogel did) in a prosecutor’s plea deal when it goes unnoticed by the judge?

Plea agreements serve the public and the defendant. The public is saved the time and expense of a trial, for instance. Going outside the range of recommendations made in the Fogel Plea Agreement is unusual. It can only be hoped that it remains an example of an unusual situation where the plea deal was not respected and isn’t heralding a trend that plea agreements aren’t going to be trustworthy in cases where a stigma and public denouncement attaches.

Lesson Here:

It may be more difficult to negotiate plea agreements, particularly in child sex crimes charges, if the defense and the prosecution cannot feel comfortable in a process where the hard work they do in reaching an agreement will be honored in the sentencing hearing.

Final note: Fogel has the ability to appeal the sentence to the United States Court of Appeals for the Seventh Circuit. Whether he will do so, and if he did, the likelihood of his success in that appeal, is beyond the scope of this blog post.

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For more information, see our web resources page and previous posts on sex crimes along with Michael Lowe’s Case Results.

Also read the in-depth article, “Top 10 Mistakes In Sexual Assault And Indecency With A Child Cases.”