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August 20, 2015

Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?

The question in the title of this post is one that I first had when I initially heard of the basics facts and basic plea deal terms (reported here) surrounding the child sex crimes committed by former Subway pitchman Jared Fogle.  In addition, a number of blog commenters have in prior posts comments likewise wondered about the sentencing range Fogle would appear to be facing under the terms of the plea deal.  Along those lines, here are now some recent media coverage on this plea deal front:

As federal practitioners know, whatever plea deal that has been put together in this case by the parties could ultimately be rejected by the district judge. Such a plea deal rejection, in a typical federal criminal case, is quite rare. But the media attention already generated by this case makes it anything but typical, and that media attention might also end up influencing the judge who has to approve the deal before it becomes official.

Helpfully, this official press release from the U.S. Attorney’s Office for the Southern District of Indiana provides a bit more detail about what seem to be the sentencing elements of the proposed plea deal: 

According to Senior Litigation Counsel Steven D. DeBrota, who is prosecuting the case for the government, under the terms of the plea agreement, Fogle faces a mandatory minimum sentence of at least 5 years of imprisonment, a fine of up to $500,000, and supervised release after serving his prison sentence for at least 5 years and up to the remainder of his life. There is no agreed sentence in the case and the government may request of up to 151 months of imprisonment. However, Fogle may not request a sentence below 5 years of imprisonment.

The Plea Agreement also requires Fogle to pay a total of $1,400,000 in restitution to the 14 victims in the case, 8 of whom are still minors, and forfeit assets of $50,000. This is the largest amount of restitution ever ordered for a child pornography or sex trafficking case in the history of the Southern District of Indiana. The victims will be able to use these funds to pay for counseling and treatment to combat the debilitating life effects of these crimes.

Reading between the lines, it seems that the plea deal as described here may only limit the severity of the sentencing that prosecutors recommend, it may not formally limit what sentence the judge could acually impose. If this is accurate, then I would predict that the district judge would be inclined to accept even a seemingly "sweetheart" deal for Fogle safe in the knowledge that he could ultimately impose a sentence longer than the 12.5 years of imprisonment likely to be recommended by prosecutors when sentencing finally rolls around.

Prior related posts:

August 20, 2015 at 06:33 PM | Permalink


Right. It's a Rule 11(b)(1)(B) plea agreement. It does not bind the court, which could go up to 50 years (i.e., the sum of statutory maximums for the two charges). While courts sometimes reject binding (C) agreements, rejecting a (B) agreement almost never happens.

Posted by: Todd | Aug 20, 2015 7:04:20 PM

What is he accused of doing to minors? Explicitly what is he accused of doing? Oral sex? Anal sex? Touching? Ooogling?

Posted by: Liberty1st | Aug 21, 2015 1:39:45 AM

For a different view on the sentencing: http://reason.com/blog/2015/08/20/why-is-jared-fogles-viewing-of-naked-tee

Posted by: federalist | Aug 21, 2015 8:20:45 AM

He is accused of having sex with minors (16 or 17 years old) and asking them to find him younger girls to have sex with, "the younger the better". The mandatory minimum for enticement is 10 years. He also viewed child pornography that was produced by his friend.

No client of mine would ever get a bond in those circumstances, nor would they be permitted to plead to a pornography charge instead of enticement. Because he is pleading to a pornography charge, he avoids any cross-reference in the Guidelines to the enticement guideline, which would produce a much higher Guideline range. He will also have a shorter sex offender registration period under SORNA because he is pleading to a pornography offense instead of a contact offense.

Posted by: defendergirl | Aug 21, 2015 9:34:36 AM

Defendergirl---do you think that Fogle's celebrity status made him more likely to come on feds' radar, but less likely to get the big hammer?

Just curious.

Posted by: federalist | Aug 21, 2015 9:44:18 AM

This is the problem with "the law" and I use that term "lightly" in this country. Celebrity status + big $$$$= lighter sentences! Plenty of non-contact, non-production CP viewers who got caught up in P2P websites are sitting in prison doing 5-10 for a lot less than what Mr. Fogle is accused of. Where's their "sweetheat deal"?

Posted by: kat | Aug 21, 2015 9:45:08 AM

Have we gone insane as a nation? In what world is many years in prison for an educated, well-off young man - who appears to have mental problems more than really being a terrible guy -- not an extremely severe penalty? Is there really a problem with Jared getting 5-10 years and not decades in prison? People need to get real. I think we lose all perspective in our sentences in this country. That is why we have an incarceration rate 5-10X higher than just about every other civilized Western society.

Posted by: Mark | Aug 21, 2015 9:55:57 AM


Those are good questions, and the answer is I'm not sure. I do think the federal enforcement focus has shifted more to catching producers of porn and he came to their attention through the investigation of his friend, the producer. There are always nuances and details that make each case unique, so I can't even say his deal is unfair without knowing a lot more detail.

I do think his pretrial treatment is very different than that of most people who have been caught engaging in similar conduct, but again, it isn't wrong that he is on house arrest if he is low risk. He probably also has an ankle monitor, so they will know if he violates his bond by leaving home. Many of my clients charged with possession and receipt of child porn get bond, but I've never had an enticement client get bond ever.

Posted by: defendergirl | Aug 21, 2015 10:37:16 AM

Note that if the court imposes a sentence higher than the one recommended by the government, Jared gets his appellate rights back. So the court will have to think twice before saying no. For the record, I have never seen a plea offer like that in my district.

Like defendergirl, there is zero chance of one of my clients remaining out on bond in Jared's situation. I strongly suspect the prosecutors here would hit him with a production charge directly for soliciting explicit selfies from the underaged prostitutes. I don't have any idea about the influence of his celebrity, but I do wonder if the restitution agreement isn't a part of the rationale.

Posted by: anotherdfndr | Aug 21, 2015 1:27:47 PM

Plus 1 to federalist's link:

Why Is Jared Fogle's Viewing of Naked Teenagers a Federal Case?
The arbitrary decision that greatly magnified the penalties he faces
by Jacob Sullum.

Posted by: Anon | Aug 21, 2015 2:46:33 PM


Appreciate the info. I hope you two (i.e., you and anotherdfndr) stay here and continue to comment.

Posted by: federalist | Aug 21, 2015 2:46:50 PM

Mark- You're correct, the nation has gone insane. I'm not saying Mr. Fogle needs to seen 5-10 behind bars, neither do a lot of the others currently serving time for similar offenses, the mandatory minimums for these some of these offenses are too severe.
Most of those incarcerated for low level CP viewing receive no treatment of any kind while in prison, they get a BOP periodic review with a psychologist, that's it. Mr. Fogle seems to have a problem that is alittle more severe than just viewing CP, but, like all the rest, he should be given inpt/outpt treatment for his problems, not wasted years behind bars that will leave him with even more psychological problems and his future, as well as his family's, in shambles.
The problem is the law and until the US Sentencing Commission makes CP priority #1 instead of continuously moving it to the back-burner, nothing will change.

Posted by: kat | Aug 21, 2015 4:26:37 PM

Am I missing something here? I thought the charges included contact (molestation) offenses, with human trafficking implications, as well as child pornography. In fact, the plea deal explicitly addresses those indicents with the result of the 1.4 million dollars distributed to the 14 victims, in addition to the half-million dollar general fine.

If this is the case, then indeed it would seem as if he's PAYING to NOT have those contact/trafficking charges included in the plea deal. If this IS the case, he's not only getting a sweetheart deal, but I question the ethics of both the prosecutor for accepting (or perhaps insisting) on such a requirement, and potentially the judge from accepting it.

In addition, this is the first time I've heard that the defendant assert a minimum period of incarcaration as part of the plea. This sounds like it is in reference to other cases in the past in which the judge went way south and gave sentences of no incarceration, or token 30-day sentences. In short, it sounds as if the judge can NOT go less than five years if he accepts the deal to prevent such a downgrade.

Posted by: Eric Knight | Aug 21, 2015 5:42:03 PM

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