Did Jared Fogle Get What He Deserves?

Jared Fogle became the face of Subway after he reputedly lost an ungodly amount of weight on a Subway sandwich diet, and he was, for a time, arguably one of America's most beloved pitchmen. But now he's become America's boogeyman in the wake of a 15 years and 8 months prison sentence resulting from a plea deal for soliciting and paying to have sex with minors and for possessing and trading in child pornography.

As one might expect, people are alternately vilifying him and celebrating his judicial fate. But I take no more pleasure in Fogle's predicament than I do from contemplating the harm he's caused his family and the children he allegedly abused. For I believe that Fogle's actions were the result of a sickness he couldn't resist and that this makes him as much a victim of that sickness as are any of the children he may have molested.

Thus, I have grave misgivings about his harsh sentence if it was imposed for retributively punitive reasons, because it seems to me unfair and unjust to inflict retributive punishment on someone for doing something he couldn't help but do.

I also doubt that such a lengthy sentence is a significantly larger deterrent than a much lesser sentence would be. I wonder if any research has been done in the area of the comparative deterrent effect of various prison sentences for these kinds of crimes.

One thing that such a long sentence WILL accomplish is prevent Mr. Fogle from abusing any more children for the duration of his incarceration. But if it were possible to know with certainty that he wouldn't abuse more children after he got out, I'd support letting him out far sooner.

It's my understanding that federal sentences like this tend to be carried out to the full or nearly so, and, indeed, I've read that Fogle will have to serve a minimum of 13 years no matter how well he behaves himself behind bars. And then he may face an even sterner test upon release as he confronts extreme social ostracisim and feelings of profound shame as well as the severe residential restrictions, occupational limitations, and other monumental hardships that attend having to register as a sex offender for the rest of one's life.

So, I'm thinking that he has a tremendously difficult road ahead of him as a result of his sickness, and, again, I feel sorry for him as well as for the children he abused.

Can a Court Ruling Be Both Just and Wrong?

Genarlow Wilson, 21, has spent more than two years in prison for having consensual oral sex at a party in 2003 with a girl who was two years younger than him. He was convicted under a 1995 Georgia law that made his offense of "aggravated child molestation" a serious felony, and he was sentenced to ten years in prison without possibility of probation or parole.

There has been much publicity about this case, as many, myself included, believe that the severity of this sentence was an egregious miscarriage of justice. The Georgia state Legislature implicitly agreed by changing the law in 2006 to make consensual oral sex between two teenagers so close in age a misdemeanor rather than a felony. But the law was expressly NOT made retroactive, so Wilson languished in prison and his formal appeal and the public's protestations went unheeded by the courts. Even the Georgia Supreme Court upheld a lower court's ruling that the new law couldn't be applied retroactively to Wilson or anyone else convicted under the earlier law.

However, when a Monroe County judge decided to reduce Wilson's sentence to a year and release him and the state appealed his decision, the Georgia Supreme Court agreed to hear the case and ended up with a 4-3 ruling upholding the lower court judge's decision to have Wilson released. The minority judges expressed their disagreement by arguing that the ruling exhibited "unprecedented disregard" for the Legislature's constitutional authority. Nevertheless, the decision stands and Wilson is expected to be released this afternoon.

I'm delighted that he's going to be free, and I hope that being in prison for over two years hasn't seriously undermined his chances of making a good life for himself on the outside. He is reportedly "committed to talking and working with young people to spread the message that he made a mistake that night and doesn't want it to happen to anyone else." However, I'm not sure I understand the higher court's ruling. I agree wholeheartedly with its statement: "Although society has a significant interest in protecting children from premature sexual activity, we must acknowledge that Wilson's crime does not rise to the level of culpability of adults who prey on children." Yet, if the state Legislature does, indeed, have the constitutional authority to make laws that are not to be applied retroactively, and the Georgia Supreme Court itself court upheld that authority with respect to the very law in question just a short time ago, on what strictly LEGAL grounds could it turn around and negate that authority and its own previous ruling?

It seems to me that we have a rather clear case of, in Wilberian Integral terms, "second tier" or integral values overcoming "first tier" values, which, it seems to me, is what true justice often demands. That is, true justice often requires that we look beyond and rise above the mere letter of the law to embrace and manifest its motivating spirit. It would seem that four of the Georgia Supreme Court justices were able to do that, although one can't know for sure what really motivated each of them to decide as they did, and three justices could not. The latter and those who side with them are trapped in a conventional "the law is the law" mentality or worse, and they would have let Wilson spend another eight years in prison for being a seventeen-year-old boy who engaged in one documented act of oral sex with a fully consenting fifteen-year-old girl.

Again, it seems to me that justice triumphed over legal formality in this case. But I wonder if some court somewhere might just as easily violate legal formality to inflict injustice. For instance, might a court rule that a law can be applied retroactively to impose a much harsher sentence on someone than he originally received under the previous law he was convicted of violating, or could it even decide that someone can be tried for breaking a law that didn't even exist at the time he allegedly broke it? If it does, I hope there's a quick remedy for it and that justice ultimately and swiftly prevails.

Pedophilia and the Law

Jack McClellan is one of the most notorious people in the land, and he's certainly done more than his share to make himself so by maintaining well-publicized websites extolling his sexual and emotional obsession with prepubescent girls and by openly appearing before the media for interviews that have turned him into a household name and virtually burned his visage into the memory cells of every concerned parent in America if not beyond. But there's one not-so-little catch. He's never been so much as suspected, much less convicted, of molesting any children. He is a self-admitted pedophile, to be sure, but there's not a scintilla of evidence that he's ever acted out his aberrant desire, and, indeed, he maintains that his openness about his desires is "the best therapeutic thing" for him to do in order to avoid molesting children.

Yet, Jack McClellan now sits in a Los Angeles County jail for violating a temporary restraining order forbidding him from coming within ten yards of any child. Police deemed him to have committed this violation when he showed up on the UCLA campus for a TV interview after being cited hours earlier and warned not to return for appearing near the campus' Infant Development Program building with a camera in his possession. McClellan contends that he didn't believe that he was violating his restraining order by stepping foot on a college campus for a public interview where few if any children would likely be present.

I think he's right. Furthermore, I think that those legal scholars are right who say that the restraining order against McClellan unconstitutionally violates his right to free expression, and I hope that a court quickly makes this determination and sets him free.

Yet, there's more to consider here than just the extraordinary case of Jack McClellan. I believe that applying this "ten-yard" law even to those convicted of molesting children is wrong and should be found unconstitutional because of how impossible it is for virtually anyone except a hermit in the woods to obey it and how severely it curtails one's right to survive much less pursue ANY kind of happiness. How can one buy food at the grocery store, eat out at a restaurant, shop for clothes or other necessities, go to a movie, browse or acquire books at a bookstore or library, attend school, use public transportation to get to work, or be hired for any job that places one in contact with the public under this law?

The way I see it, if we need laws against convicted child molesters being around children, these laws should forbid deliberately associating or interacting with children or being alone with them; they should NOT prohibit simply being in the vicinity of children in a public place. And if there are firm grounds for believing that this level of restraint isn't enough to protect our children, then we need to PERMANENTLY incarcerate those convicted of child molestation.

Actually, I believe that "quarantine" is a better term for it, because I believe that pedophilia is a sickness of the mind and not a moral choice deserving hatred and vindictive punishment. Thus, if we find it necessary to isolate all convicted child molesters from the public in order to protect our children or, in some cases, to protect the convicted from vigilante "justice," then I believe that these individuals should be confined to humane institutions or areas of institutions set aside only for convicted child molesters so that their lives won't be imperiled by exposure to general prison populations.

As for the case of Jack McClellan, the supreme irony is that his extreme notoriety probably renders him one of the safest of ALL adults to be in the company of a child in public. For how could he, OF ALL PEOPLE, dare to approach a child in a public place for purposes of having sex with her?