Former Subway pitchman Jared Fogle leaves the Federal Courthouse in Indianapolis, Wednesday, Aug. 19, 2015 following a hearing on child-pornography charges. Fogle agreed to plead guilty to allegations that he paid for sex acts with minors and received child pornography in a case that destroyed his career at the sandwich-shop chain and could send him to prison for more than a decade.  (AP Photo/Michael Conroy)
Jared Fogle to plead guilty in child porn case
01:23 - Source: CNN

Editor’s Note: Mark O’Mara is a CNN legal analyst and a criminal defense attorney. The opinions expressed in this commentary are solely those of the author.

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Jared Fogle, who pleaded guilty to child sex and pornography charges, will likely serve between five and 12½ years in prison

Mark O'Mara: Even the maximum sentence under the plea deal may be too light

CNN  — 

In July, authorities raided Jared Fogle’s home and confiscated electronic equipment – part of a broader investigation into the case of Russell Taylor, who had been executive director of the Jared Foundation, and was arrested for child pornography in May.

At the time, federal authorities made it clear that Fogle was not under investigation. Clearly, that position changed.

According to U.S. Attorney Josh Minkler, Fogle has been involved in a “five-year criminal scheme to exploit children.” The famed former Subway pitchman is expected to plead guilty to child pornography charges and crossing state lines to pay for sex with minors. As part of his plea deal, Fogle will likely serve between five and 12½ years in prison.

Mark O'Mara

If you think this sentence range seems light, you would be right, especially when you consider there are people serving life sentences for less egregious drug crimes.

All states have outlawed the possession, distribution and production of child pornography, with distribution and production garnering particularly harsh sentences that can stretch on for decades. Possession of child pornography is considered less severe and involves the possibility of incarceration, or, sometimes, just probation.

This may be how Fogle gets his first break. According to the court documents, Fogel was not involved in the production of the pornography, nor is there a mention of distribution. Instead, the documents specify that “he chose to benefit from such production by obtaining access to a significant amount of such material.” Since mere possession is on the bottom of the criminal range when it comes to child pornography, his sentence would be less than those on the top of the range.

It’s a concept in our legal justice system called “proportionality.” It means the sentence of one individual should be congruent with others convicted of similar crimes. Similarly, the entire system should, in theory, mete out sentences appropriate to crimes as compared to other crimes.

If you compare Fogel’s sentence with those of dissimilar crimes – like the drug crimes we mentioned before – it may seem disproportionately low. That may speak more to the draconian nature of our drug laws, however, than it does to the leniency of Fogel’s sentence.

In child pornography cases, prosecutors have wide latitude in how they proceed with charges. The way the statutes are crafted, each image can count as a separate charge, and in many cases there can be thousands of images.

In this case, prosecutors describe “significant amounts.” The more charges, the longer the probable sentence. But prosecutors don’t have to count every image; they can use their discretion when charging, and it seems likely that they decided to charge on the low end.

Why would they do this? My guess is that Fogle has been cooperative. It’s apparent that his defense attorneys have been negotiating these last weeks to strike a deal that includes some incarceration but limits his exposure.

It’s practically certain that the terms of the plea deal will require Fogle to cooperate fully with investigators, and it’s possible we could see Fogle testifying against Taylor or others who may have been involved in the production and distribution. These elements, called “acceptance of responsibility” and “substantial assistance” are acknowledged in the law to allow for lesser sentences.

But there is a much more insidious layer to Fogle’s behavior. The bulk of his sentence may be for the other charges of traveling across state lines to have sex with a minor, which he is pleading guilty to.

Those crimes have active, identified, and presently abused victims. I’ve seen cases where individuals see a decade or more of prison time simply for traveling to have sex with a minor. If we look at the “proportionality” of Fogle’s sentence in this regard, it’s very low. Critics of the agreement will likely suggest he was given a sweet deal because of a large payout to the victims (he will pay $1.4 million in restitution), and his status as a celebrity.

Here’s why I think that is a problem:

Sentences for such sex crimes are often long (much longer than five to 12½ years), not just because of the heinousness of the act, but because of the likelihood of recidivism.

Child sexual abuse perpetrators often suffer from psychological dysfunction that is difficult to treat. While the rate of recidivism can be lowered by intensive treatment, such treatment takes time, and most correctional facilities are not staffed to provide such treatment.

Even though Fogle has recently acknowledged he has a “medical condition” (probably the groundwork for an admission to an out of control addiction to pornography), that disease will not be cured between now and his admission into prison. I fear his condition will be left mostly untreated for the duration of his incarceration.

Some states, such as Florida, have acknowledged the reality of the “hard wired” nature of these crimes by passing statutes that allow for an inmate to be kept beyond their normal sentence if it can be shown that they are still a risk to the general public. In Florida, this is known as the Jimmy Ryce Act, named after a child victim of sexual abuse and murder.

CNN and the Kaiser Family Foundation released the results of a poll called “Race and Reality in America.” At first blush, I feared it was just another broad acknowledgment that America has a race problem – without a solution.  As I drilled down, however, I found something tangible we can do to start making a change: put body cameras on every cop.   

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