"SOUNDS LIKE YOU ENJOY SEX WITH KIDS," a reader tweeted at me after seeing a blog post I wrote about former Subway pitchman Jared Fogle. It was 2015, and Fogle had just signed a plea agreement in which he admitted to looking at child pornography and having sex with two 16-year-old prostitutes. "You also look like [a] pervert," the reader added.
That's the sort of response you can expect if you write about the broad category known as "sex offenders" and suggest that not all of them are the same or that some of them are punished too severely. In this case, I had noted that the decision to prosecute Fogle under federal law, which had been justified by factors that had little or nothing to do with the gravity of his offenses, had a dramatic impact on the penalty he was likely to receive.
Fogle ultimately was sentenced to nearly 16 years in prison, a penalty that was upheld by a federal appeals court in June. Had he been prosecuted under state law for the same actions, his sentence could have been as short as six months (the minimum penalty for possessing child pornography in Indiana, where Fogle lived) or as long as four years (the maximum penalty for an adult 21 or older who has sex with a 16-year-old in New York, where Fogle met the prostitutes).
The arbitrariness of Fogle's punishment should trouble anyone who thinks fairness, consistency, and proportionality are essential to a criminal justice system worthy of the name. But the conjunction of two fraught topics--children and sex--makes it hard for people to think clearly about such matters. The fear and disgust triggered by this subject help explain why laws dealing with sex offenses involving minors frequently lead to bizarre results, including wildly disproportionate sentences, punishment disguised as regulation or treatment, and penalties for committing unintentional crimes, recording your own legal behavior, or looking at pictures of nonexistent children.
UNLIKE RUSSELL TAYLOR, who ran Fogle's charitable foundation, Fogle was not accused of producing child pornography. He was instead charged with looking at photographs and video of "minors as young as approximately 13-14 years" who were "secretly film ed in Taylor's current and former residences."
According to the government's statement of charges, Taylor produced that material "using multiple hidden cameras concealed in clock radios positioned so that they would capture the minors changing clothes, showering, bathing, or engaging in other activities." He also gave Fogle a thumb drive containing "commercial child pornography" featuring minors as young as 6. Fogle "on one occasion" showed this material to "another person." That became the basis for a distribution charge, which was dropped as part of Fogle's plea agreement. Fogle's lawyers say that incident involved "one individual with whom [he] was then involved romantically, and it occurred in the confines of a locked hotel room."
The voyeuristic material that Taylor produced did not involve sexual abuse of children. According to the charges, the guests caught on Taylor's cameras "did not know that they were being secretly filmed." Taylor's actions, which earned him a 27-year prison sentence, were obviously an outrageous invasion of privacy and breach of trust, and Fogle bears responsibility, at the very least, for allowing the secret recordings to continue by failing to report him. (Taylor, seeking leniency, claimed Fogle had actually encouraged him to install the cameras.) But what Taylor did is not the same as forcing children to engage in sexual activity, and what Fogle did is even further removed from such abuse.
Under federal law, however, looking at child pornography can be punished as severely as sexually assaulting a child. Receiving child pornography, which could mean viewing a single image, triggers a mandatory minimum sentence of five years. The maximum penalty for receiving or distributing child pornography is 20 years, and federal sentencing guidelines recommend stiff enhancements based on factors that are very common in these cases, such as using a computer, possessing more than 600 images (with each video counted as 75 images), and trading images for something of value, including other images.
In exchange for Fogle's guilty plea, prosecutors agreed to ask for a sentence of no more than 151 months. His lawyers argued that 60 months, the mandatory minimum, would be more appropriate. Rather than settle on a number somewhere between those two suggestions, U.S. District Judge Tanya Walton Pratt sentenced Fogle to 188 months--almost 16 years--for looking at the pictures Taylor provided. That prison term was not only longer than the government had sought; it was longer than the upper end of the range recommended by federal sentencing guidelines. Last June the U.S. Court of Appeals for the 7th Circuit upheld Fogle's sentence, which means he will spend at least 13 years behind bars, even allowing for "good time credit" based on his behavior in prison.
If Fogle had been prosecuted under Indiana law for possession of child pornography, he would have faced a minimum sentence of six months and a maximum sentence of three years. Even assuming he would have received the maximum penalty, the decision to prosecute him under federal law effectively quintupled his sentence. Yet the official reason for prosecuting him under federal law--that the images he viewed were produced using equipment "manufactured outside the State of Indiana"--does not make his actions (or his inaction) any worse.
LIFE FOR LOOKING
AS A RESULT of congressional edicts, the average sentence in federal child pornography cases that do not involve production rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission (USSC). Many federal judges have rebelled against what they perceive as patently unjust sentences for such offenses. In 2005 the Supreme Court ruled that federal sentencing guidelines (as opposed to mandatory minimums set by statute) are merely advisory, freeing judges to depart from them in the interest of justice. After that decision, according to the 2012 USSC report, "the rate of non-production cases in which sentences were imposed within the applicable guideline range steadily fell from its high point in fiscal year 2004, at 83.2 percent of cases, to 40.0 percent of cases in fiscal year 2010, and to 32.7 percent of cases in fiscal year 2011."
In 2016, Jack B. Weinstein, a federal judge in Brooklyn, was called upon to sentence a 53-year-old father of five who had pleaded guilty to possessing two dozen photos and videos showing children in sexual situations. The defendant--identified only by his initials, R.V.--told NBC News he came across the images that led to his arrest while looking at adult pornography. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading." He added that "I feel very remorseful," and "it's something that will never happen again." NBC reported that "the man also had'sexual' chats with underage girls online, but there was no evidence he sought physical contact with minors." A psychiatrist testified that R.V. did not pose a threat to his own kids or other children.
The sentencing guidelines recommended a prison term of six and a half to eight years. Instead, Weinstein sentenced R.V. to time served (five days), a fine, and seven years of supervised release. "The applicable structure does not adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment, with resulting unnecessary cost to defendants' families and the community, and the needless destruction of defendants' lives," Weinstein wrote in a 98-page explanation of his reasons for departing so dramatically from the guidelines. "Removing R.V. from his family will not further the interests of justice; it will cause serious harm to his young children by depriving them of a loving father and role model, and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."
Judges are not alone in questioning the propriety of federal sentences for viewing and sharing child pornography. In a 2015 case, James Gwin, a federal judge in Cleveland, asked jurors what sentence they considered appropriate for a man they had convicted of possessing and distributing child pornography. The defendant was caught with 1,500 images, and he was charged with distribution because he also had peer-to-peer file sharing software. The mandatory minimum was five years, prosecutors wanted 20, and federal sentencing guidelines recommended 27. On average, the jurors recommended a prison term of 14 months, less than a quarter of the shortest sentence allowed by law.
Although state penalties for looking at child pornography are often lighter than federal penalties, they can also be more severe. In 2011, a Florida judge imposed a sentence of life without the possibility of parole on Daniel Enrique Guevara Vilca, a 26-year-old with no criminal record who was caught with 454 child pornography images on his computer. "Had Mr. Vilca actually molested a child," The New York Times noted, "he might well have received a lighter sentence."
SOMETHING HAS GONE terribly wrong with our criminal justice system when the same offense can be punished by five days in jail or by life in prison, depending on the whims of legislators and judges. One reason it is so hard to figure out an appropriate punishment for looking at child pornography is that it's not...