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November 19, 2015

Jared Fogle given (above-guideline and above-prosecutor-recommend) sentence of 188 months in federal prison for sex offenses

As reported in this local article, "Jared Fogle was sentenced to 15 years, eight months in prison Thursday for possession and distribution of child pornography and traveling across state lines for commercial sex with a minor." Here is more about the sentencing:

Judge Tanya Walton Pratt announced the sentence for the former Subway pitchman in federal court in Indianapolis. Fogle was taken into custody of the U.S. Marshal after the four-hour, 42-minute hearing. He was handcuffed behind his back and led out of the courtroom as family members hugged and cried.

Immediately after the hearing, Fogle blew a kiss and waved goodbye to family members in the front row. About a dozen family members and friends attended the hearing. The sentence is more than the 12 1/2 years that prosecutors agreed to seek in a plea deal. Pratt said the advisory sentence range of 135 to 168 months "does not sufficiently account for the defendant's criminal conduct."

Federal prisoners must serve at least 85 percent of their sentences. The judge recommended that Fogle be sent to a prison in Littleton, Colo., because of its program for sex offenders.  "Federal judges do not sentence based on emotion or public sentiment," Pratt said. She added, "The level of perversion and lawlessness exhibited by Mr. Fogle is extreme."

She described Fogle, 38, as having had a "privileged" upbringing before becoming "obsessed" with sex and minors. Pratt talked about Fogle's journey from being morbidly obese while at Indiana University to losing weight and being discovered by Subway.  "What a gift to have such a professional windfall fall in your lap," Pratt said.

Pratt said she believes Fogle is sincere in his remorse and took into account the $1.4 million in restitution he has paid. "This defendant's celebrity cuts both ways," she said. "He will likely get protection when he goes to the Bureau of Prisons."

Prior related posts:

November 19, 2015 at 03:13 PM | Permalink


What this judge did -- an above guideline sentence -- was wrong. She wasn't influenced by emotion? Really? Who believes that. The crime was horrible, despicable even, but why is it that the US has to be exceptional in punishment? Is it a part of our American exceptionalism? Is it that 12 years -- an eternity wasn't long enough? And she really thought Fogle being rich would give him protection in prison? I wish judges actually stepped foot in a prison cell and spent a month there before condemning others to that fate. Prison is the great equalizer -- money does not buy you protection and if Fogle is put in Protective Custody he will spend his entire 15 years in segregation (aka solitary confinement).

I do not defend this man's crime but two moral wrongs do not make a right. They are horrible but most other western countries would have sentenced him to no more than five years. And guess what? Recidivism doesn't go up. The victims are no less safe and no less compensated (and here they got something most other victims don't get: $100,000 each). There are some interesting pieces by criminologists that document this surge in punishment in the US compared to other western countries (Norway, Sweden, UK and Germany) and unsurprisingly they blame the media. If punishment is to be measured by something other than especially or at least the 3553(a) factors someone should explain how any of those factors were met with this 188 month sentence other than standard robotic incantation of the 3553(a) factors that judges are so accustomed to reciting at sentencing without any real analysis of how a particular meets those needs.

Posted by: Defense Attorney | Nov 19, 2015 3:36:24 PM

"She wasn't influenced by emotion? Really? Who believes that."

I think emotion influences judges regularly -- they are human and human judging will include non-rational aspects -- but that goes both ways. I also wouldn't hook on to one thing she said especially since we have but a summary. Ultimately, she is working in the U.S. system as a whole. If we don't like how much crimes are punished here, okay.

Posted by: Joe | Nov 19, 2015 4:33:49 PM

So was this high enough to void whatever appeal waiver was agreed to? If above the guideline range I would suspect yes.

Posted by: Soronel Haetir | Nov 19, 2015 4:52:22 PM

"Is it a part of our American exceptionalism? "


Posted by: Daniel | Nov 19, 2015 5:46:34 PM

It cuts both ways. Had he been convicted of production, he would have faced a 15 year mandatory minimum. No doubt he would have gotten more time had that been the case. That said, this judge was grandstanding. There is no excuse for Fogle's behavior but this judge should have given him what the prosecutors asked for if she was going to impose such a high sentence. I actually agree with his defense attorneys that the humiliation he suffered in this being the most high profile CP case in US history could have warranted a lower sentence. I certainly don't think he needed lifetime supervised release but many judges give that for simple possession. Overall I was not surprised.

Posted by: Lawyer | Nov 19, 2015 7:06:54 PM

Note: He was technically not guilty of production even though he aided in it. That's where he got the break. It was a very thin line. Where he didn't get a break is the judge went three years higher than what the U.S Attorneys asked for.

Posted by: Lawyer | Nov 19, 2015 7:14:57 PM

What? Did he work in a subway in NYC or someplace?

Posted by: Liberty1st | Nov 19, 2015 8:22:00 PM

" "Federal judges do not sentence based on emotion or public sentiment," Pratt said. She added, "The level of perversion and lawlessness exhibited by Mr. Fogle is extreme."

The "judge" just disproved the above comment. Most "judges" cannot even realize their own self-deception. They practice their own brand of perversion.

Posted by: albeed | Nov 19, 2015 8:45:02 PM

"Federal judges do not sentence based on emotion or public sentiment," Pratt said. She added, "The level of perversion and lawlessness exhibited by Mr. Fogle is extreme."

If she had just left it alone at 'lawlessness' I would disagree agree with you. But you are right: 'Perversion' is an unscientific word and certainly one that is emotionally laden.

Posted by: Lawyer | Nov 19, 2015 9:11:13 PM

According to the Oxford American Dictionary, "perversion" under its third definition means "a preference for a form of sexual activity that is considered abnormal or unacceptable." That seems reasonably objective to me and not "emotionally laden." I'm just a layman but I'm siding with the judge here.

Posted by: Gary H. | Nov 19, 2015 9:50:00 PM

Vile feminist prosecutor. Vile feminist judge. Betrayal by defense lawyers.

He should start over with a new legal team.

Posted by: Supremacy Claus | Nov 19, 2015 11:06:20 PM

The judge took into account that he paid $1.4 million to the victims? How did she take that into account? By giving him an upward departure. I think judges really get a kick out of seeing a defendant suffer in front of them. Even if Jared can get around the appellate waiver, the Seventh Circuit is likely to uphold the sentence on both substantive and procedural grounds. Remember, post Booker and its progeny defendants dont need to be given advanced warning of a possible upward departure....

Posted by: Anon Lawyer | Nov 20, 2015 5:56:28 AM

I had a similar case (almost identical numbers: 12 1/2 high end of guidelines, 15 years actually imposed). The Judge said he was taking all of it into account and doing the defendant a favor. Essentially, but for the mitigating evidence, it would have been even higher. I suspect that's what the Judge is saying here. I don't necessarily agree - Federal guidelines are extremely conduct-specific and take into account much of this information. It would seem much more reasonable that the mitigating information would at least cancel out the aggravating conduct.

It seems to me the Judge just had a problem with the plea, if anything. If the guidelines were too low, it was due to the prosecutor's choice not to prosecute for additional conduct.

Posted by: Erik M | Nov 20, 2015 8:44:24 AM

That sentence should be sliced by 80% and there should be treatment involved. It is obvious this juddge was blinded by emotion and celebrity outrage.

Posted by: Derek W. Logue of Once Fallen | Nov 20, 2015 10:16:03 AM

Ms. Pratt, when a Marion County Indiana judge handed down a very lenient sentence to a cop who coerced sex out of women he had pulled over. Now she cites "privileged"---which is often a code word, and really shouldn't be used.

And I don't have a problem with the sentence as a substantive matter.

Posted by: federalist | Nov 20, 2015 11:15:25 AM

If Jarod requests PC/protective custody while in prison, he will condemn himself to a prison within a prison. His movement and recreational activity will be much more restricted than that of other inmates, this is basically self-imposed solitary to keep yourself safe. Unfortunately, there is no guarantee of safety in prison.
And, while the judge has suggested Littleton, Colorado for his sentence, there is no guarantee that that's where he goes, the BOP does it's own thing, a "computer" in Texas decides where one ends up. Mr. Fogel may get transfered to a half dozen other places before/or if he actually goes to Littleton.
I think the judge chose to "make an example" out of Mr. Fogel, but she ignores the fact that with a 15 yr. sentence and a lifetime of supervision and the registry, she has essentially, taken away his life. Sad.

Posted by: kat | Nov 20, 2015 12:50:30 PM

Interesting discussion in the comments. Sex offenses at times seem to get the most discussion around here.

Posted by: Joe | Nov 20, 2015 2:28:25 PM

I don't like the reference to "privileged"---it has taken on a racial characteristic in public discourse. Judge Pratt, who isn't a great sentencer, based on her lenience towards a cop who abused his power to coerce sex (i.e., rape), should be more careful.

Oh well, another Obama judge--it will be nice for America when his presidency is in the rear-view mirror.

Posted by: federalist | Nov 20, 2015 3:54:23 PM

If this is a facility without a treatment program that segregates SO's from gen pop, he'll have to request protective custody. He's got no choice. Someone of his status convicted of this charge would be asking for a quick end to life if didn't mind being placed in gen pop. Littleton is only one of nine federal facilities with treatment programs. If he doesn't get Littleton, hopefully he'll be placed in one of the other nine facilities. Many people get sent to Devons in Mass.

Posted by: Lawyer | Nov 20, 2015 4:02:48 PM

How many people in federal custody are murdered?

Posted by: federalist | Nov 20, 2015 4:13:13 PM

How many people are named Jared Fogle in federal custody? And if not murdered, certainly you can't say rape doesn't happen in federal prison.

Posted by: lawyer | Nov 20, 2015 4:22:02 PM

Apologies lawyer---i was just curious--I didn't mean to be flip-I was under the impression that federal prisons are relatively safe.

Query: why don't prisoners who are forced to have oral sex, why don't they bite the guy's cock off?

Posted by: federalist | Nov 20, 2015 8:13:11 PM

Club Fed ain't no club. Sorry for misreading your tone, federalist (I think). It can be just as bad as state prison. This is a great read that describes a lot of what goes on in the fed pen.


Posted by: lawyer | Nov 20, 2015 9:19:04 PM

All rapes are the full responsibility of the federal prisons. They have control of the bodies of the rapist and of the victim. Because of the criminal nature of the rape, the negligence should be per se, and any dispute should be over the value of the damages.

Posted by: Supremacy Claus | Nov 20, 2015 11:51:31 PM

It is always interesting to me how quickly assault charges can be added for an inmate but rape seems to be a different story. Agreed that rapes are the responsibility of the federal prisons. If they don't condone the act in society, certainly they shouldn't tolerate it in a security imposed place where they supposedly have total control of the bodies.

Posted by: Lawyer | Nov 21, 2015 12:06:52 PM

The discussion after my comment had me looking and one official accounting only had data that was over five years old, but was helpful:


And, it does seem only a few people are murdered in federal prison, though I gather many more are attacked in various respects. As to sex offenders surviving this was of some interest:



Posted by: Joe | Nov 21, 2015 1:45:40 PM

Insiders have told me that guards coming upon an ongoing rape inside the prison will look the other way, and walk away. They are afraid for their own safety, and then becoming the targets of investigation themselves. They are fully deterred from stopping rape.

Thank the filthy lawyer traitor for every rape in prison, even the ones discovered by a guard to be ongoing. The filthy lawyer traitor always protects and privileges the criminal.

Posted by: Supremacy Claus | Nov 21, 2015 11:29:10 PM

An interesting expose:


Posted by: Steve | Nov 22, 2015 10:30:23 AM

"According to the Oxford American Dictionary, "perversion" under its third definition means "a preference for a form of sexual activity that is considered abnormal or unacceptable." That seems reasonably objective to me and not "emotionally laden." I'm just a layman but I'm siding with the judge here."

Gary H- Just because a word can be defined in the dictionary does not mean it is not emotionally laden. Perversion meant something much different 50 years ago than it does today. Judges should stay away from that kind of language. Paraphilia is a much more neutral word, it means the same thing as a "perversion" and is not emotionally laden. If the judge really says she is not sentencing based on emotion, she should use neutral language to make the same point.

Posted by: Lawyer | Nov 22, 2015 5:20:23 PM

I think "perversion" as a label meant something similar fifty years ago though what was deemed perverse was somewhat different. I think you are better to rely on the fact the word then and now isn't a neutral non-emotional word of the sort judges should use.

Not sure though that "pervert" changes much here. The word does mean "sexual behavior or desire that is considered abnormal or unacceptable" and though the term can be overinclusive (e.g., if he wore women's clothing, it might be deemed "perverse," but in the sense of "unacceptable," that would not be appropriate -- unlike having sex with children, that is not totally unacceptable), I think it's okay.

Again, I wouldn't rely one one word or the summary of what she said. I would go by the whole statement.

Posted by: Joe | Nov 23, 2015 11:04:54 AM

The name "Jared" is a step below "Josh" and such people should be barred from the subways at birth. I wont ride a subway myself.

Posted by: Liberty1st | Nov 23, 2015 2:03:39 PM

Perversion meant something similar only to the extent that the word is directly correlated with the emotion of disgust. And it's applicability has changed with time. The point I was making is because it is such a loaded word, it shouldn't be used. Pervert would be equally inappropriate. I am not a Jared apologist. One can't excuse his behavior. He deserves to be punished. But I also realize this judge had a platform and tried wielding it to send a message all the while claiming that emotion wasn't factored into her decision. Clearly it was. Sure she is a human being. We are all disgusted by what he did, so why shouldn't she be? Because it degrades the profession. Judges should not add to public hysteria; they should apply the law, plain and simple.

Posted by: Lawyer | Nov 23, 2015 6:52:38 PM

She isn't the worst judge when it comes to stirring up public hysterics. I've seen and heard defendants far more benign than Jared is called "monsters" and "freaks of nature" by judges, simply because they possessed images. No contact offense involved and no production. I also have transcripts. Wanna talk about emotionally laden?

Posted by: Lawyer | Nov 23, 2015 7:06:12 PM

All U.S. citizens should be forced to serve in the U.S. military starting at age 18. Let's say for 2 years. After that, they should be forced to spend 1 year in prison. The vast majority of people in the U.S. are entitled, ignorant morons who have no clue what it means to be imprisoned for a long period of time. Those people should have zero input or impact when it comes to putting other people in prison.

Posted by: FRegistryTerrorists | Nov 25, 2015 3:00:35 PM

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