by Buddy Pylitt
On July 7, 2015, the FBI and Indiana State Police conducted a search of former Subway spokesperson Jared Fogle’s Zionsville, Indiana residence and seized computers and other electronic equipment pursuant to a search warrant issued by a federal judge. That same day, a spokesperson for Subway announced that the company and Fogle had mutually agreed to suspend their business relationship.
On August 18, 2015, Assistant U.S. Attorneys announced that they had reached a plea agreement with Jared Fogle agreeing to plead guilty to two charges: distribution and receipt of child pornography and interstate travel to engage in illicit sexual conduct of a minor, specifically from Indiana to New York City, where he was accused of paying to engage in sexual acts with a 17 year old girl. According to pleadings filed with the United States District Court for the Southern District of Indiana, Fogle agreed to pay 1.4 million dollars in restitution with $100,000 being paid to each victim. Fogle faced a maximum of 50 years in prison had he been convicted of both at trial. Fogle will be placed on at least five years of supervision upon release from prison and be required to register as a sex offender. The plea agreement provides that the U.S. Attorney’s Office will agree to seek no more than 12 ½ years in prison while Fogle had a right to a minimum sentence of five years.
It is critical to understand that the recommendations in the pleas agreement are not binding upon United States District Court Judge Tanya Walton Pratt who scheduled a sentencing hearing for Thursday morning, November 19, 2015. Judge Pratt can sentence Fogle up to fifty years, the maximum sentence allowed under the two statutes. Her sentence will be imposed in terms of months; not years, as required by federal law.
The Federal Sentencing Guidelines came into existence in November 1987 and provided a complicated framework and methodology the Court must follow in reaching the ultimate sentence that will be imposed. Ultimately, the Judge must determine an appropriate sentence for the offense after going through the detailed calculations required by the Sentencing Guidelines. Lawyers experienced in this process are necessary to make sure that a criminal defendant receives the most fair sentence allowed under the law. Several lawyers that handle these matters are former Assistant U. S. Attorneys that bring their experience to the process.
First, the Court assigned a probation officer to conduct an independent investigation and submit a confidential pre-sentence investigative report shared with the lawyers for both parties. Following receipt of that pre-sentence investigation, the lawyers had the ability to meet with the probation department to dispute any information reported in the pre-sentence report. Victims are invited to provide their input for consideration by the Court. Following discussion with the Probation Department, any remaining dispute must be dealt with by the sentencing judge at the beginning of the sentencing hearing.
Each party has the right to file a sentencing memorandum with the Court addressing the sentencing factors and recommendation as to a proposed sentence. In his pre-sentencing memorandum filed with the court, Fogle’s attorneys argued that the five-year sentence was a “sufficient” penalty for all that he had done. The memorandum questioned politicians who lobbied for a tougher sentencing for defendants consumed with child pornography noting that the “vast majority” of the child porn that Fogle received “did not include images or videos of minor engaged in sexually explicit conduct”. The memorandum concludes that given the notoriety of this case, no one wants to be Mr. Fogel in federal prison.
The release of the plea agreement and the terms contained therein created a massive outpour of public comment and complaints. Several convicted federal sex offenders and drug offenders serving lengthy prison sentences voiced their protest that Fogle received favorable treatment due to his notoriety. Many serving lengthy sentences suggest that had Fogle been charged with all possible violations, he would have received a much harsher sentence.
Following a lengthy four hour hearing, Judge Pratt handed down her sentence. After going through the calculations, she determined that the range was a sentence of between 135 and 166 months. However, she determined that a sentence in that range did not sufficiently account for his criminal conduct. Therefore, she imposed a sentence of 188 months, or 15 years and 8 months. She recommended to the Bureau of Prisons that he be housed at the facility in Littleton, Colorado, which provides services for sex offenders. The Judge’s recommendation concerning an appropriate facility is not binding on the Bureau of Prisons, which will make its own determination as to an appropriate facility typically within the next 30 days. What is important to remember is that Fogle will serve at least 85% of the sentence that is handed down by Judge Walton Pratt. Fogle was taken into custody by the US Marshalls to be housed pending designation by the Bureau of Prisons.
As he awaits his designation, what does Fogle face? On Monday morning, November 16, 2015, the Indianapolis Star quoted from the U.S. Bureau of Prisons website that it “recognizes sex offenders as a vulnerable population within a prison setting” and considered that in placement decisions. Typically child porn inmates are placed in a low-security institution, which have cell-type perimeters and/or dormitory housing. They are housed separately from the general population with other “white collar criminals” according to the Federal Prison Guidelines. More serious child sex offenders are sent to a medium-security prison, which have mostly cell-type housing, strengthened perimeters, more rules for prisoners, and added security staff. The federal prison system currently has two medium-security facilities for the treatment of residential sex offenders with a “elevated risk of re-offending” those being in Marion, Illinois and Devers, Massachusetts which provides “therapy in a residential housing unit where they work to reduce their risk of future offending”.
The United States Bureau of Prisons was established in 1930 and charged with the “management and regulation of all federal penal and correctional institutions”. At the time, there were only 11 federal prisons in operation. Since then there has been enormous growth due in part to increased enforcement of federal laws concerning controlled substance and illegal immigration.
At the end of 1930, the Bureau of Prisons expanded to operating in 14 facilities for just over 13,000 inmates. By 1940 that number grew substantially as 24 facilities were in existence housing 24,360 inmates. As the efforts of federal law enforcement increased with new legislations in the 1980’s, the inmate population more than doubled from 1980 through 1989 from just over 24,000 inmates to almost 58,000 inmates. During the 90’s, the population more than doubled again with 136,000 inmates housed by the end of 1999. From 2000 to the present, the population continued to increase reaching the current published population as of November 12, 2015 of 198,842 federal inmates.
According to the most recent available statistics posted by the U.S. Bureau of Prisons, more than half of those inmates are between the ages of 18 and 40. Currently the U.S. Bureau of Prisons has 122 institutions, six regional offices, a headquarters, two-step training centers and 26 residential re-entry management offices. It also administers contracts with private corporations to operate 14 additional correctional institutions. Other significant information about the current federal prison population:
37.7% of federal inmates are African American, while 58.9% are Caucasian. 1.5% are Asian, and 1.9% are Native Americans.
93.3% are males while 6.7% or 13,699 inmates are female.
77.1% are American citizens while 15.6% are from Mexico. The remaining 7.3% are from other countries are unknown.
48% of all federal prisoners were incarcerated on drug offenses while 7.3% or 14,074 inmates were sentenced for “sex offenses”.