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.

What Can We Learn From Anders Breivik's Sentence?

On July 22, 2011, 32-year-old Anders Breivik calmly slaughtered 77 children and adults in a meticulously planned and bloody barrage of bombings and shootings purposed with stamping out the alleged corruptions of Islam, feminism, Zionism, Marxism, multiculturalism, and other evils destroying European civilization. He was found guilty and accorded Norway’s maximum sentence of “preventive detention” in August of this year. This means he must spend at least 10 years in prison or 21 years (100 days for each count of murder) there at most unless he’s deemed unfit for release after that time and detained longer or even for the remainder of his life. Most experts believe that he will never get out.

One might expect the unapologetic perpetrator of such monstrous mass murder to, at best, languish in a cramped cell with spartan accommodations and endure rough handling from his jailers. Instead, he lounges in digs many would envy.

His cell looks less like a dungeon than an Ikea display of optimal small-space habitation, and he even had full use of a computer in his comparatively spacious, three-room quarters right up until being sentenced for his crimes. After his computer was removed and he waited for a replacement electric typewriter, he had to use a flexible (to prevent its deployment as a weapon) rubber “nightmare” pen that cramped his hand to write out tortuous treatises defending his murderous mayhem, and he didn’t like it.




In fact, in a scolding, 27-page letter to prison officials he presented a stinging litany of complaints about the “inhumane” indignities he was forced to endure including not only the rubber pen, which he called “an almost indescribable manifestation of sadism,” but also the routine censoring of his mail and phone calls, strip searches, cold coffee, “unwelcoming” prison guards, noisy fellow inmates, and having to wait as long as forty minutes for guards to switch on and off his TV and lights each day from controls located outside his cell.

Had Breivik committed his ghastly crimes in just about any other part of the world he would no doubt have far more to complain about, were he even left alive to complain, but he’s in Norway, and Norway has one of the most lenient justice systems in the world, based, as it is, on the lofty principle of “restorative justice” aimed at healing everyone affected by a crime, including the perpetrator, and arguably remarkably effective at preventing violence in prison and recidivism upon release.

Yet, even Norwegian justice is grounded on the conventional belief that, except in very rare cases of obvious insanity, people commit crimes of their own free will and can therefore be held responsible for them, and Breivik was adjudged sane and responsible for his atrocities. More specifically, he was judged not to have a psychotic condition that caused him to enact his murder spree, and he was consequently sent to prison rather than a psychiatric facility.

But what if Breivik didn’t have free will and couldn’t help but do what he did on that infamously “Bloody Friday” in July? How so, given the fact that he very deliberately planned and perpetrated his massacre? How could he not have been free if he wanted to kill all those people and was able to carry out his homicidal intentions with chilling efficacy?

Because, says philosopher and free will scholar Robert Kane, being free to do what one wills is only a “surface freedom” and not necessarily “free will” as philosophers understand it. That is, if one is free to do what one wills but is determined by causes one doesn’t control to will what one does and to act out that will, how is that free will?

As philosopher and neuroscientist Sam Harris argues in his recent book Free Will, “free will” is the belief that “(1) Each of us could have behaved differently than we did in the past, and (2) We are the conscious source of most of our thoughts and actions in the present,” and, says Harris, the notion that we have this magical capacity is undermined by a growing body of scientific research showing that our thoughts, choices, and actions inevitably originate from interacting physical, biological, psychological, social, and cultural conditions of which we aren’t fully conscious and over which we exert incomplete control. 




And if this is true of all of us, it’s certainly true of people such as Anders Breivik who commit criminal atrocities. For as Sarah Lucas recently wrote in the Humanist, if we apply Harris’ argument to the Breivik case, we conclude that “had you been born with Anders Breivik’s genes, grown up in the same environment, been dealt the same life experiences and woken up on that July 22 morning with an identical brain, you would have committed his crimes (after all, you would have been him).”

Sam Harris’ argument is controversial, to be sure, but what if he’s right and people can’t help but commit the crimes they do given their nature when they commit them? How should society deal with them? Should it ensconce them in almost palatial prisons like Breivik’s or subject them to harsher treatment? And if the latter, how much harsher should that treatment be?

Many would argue that justice isn’t only about inflicting upon the perpetrator what he or she deserves but also providing society what it needs to heal after the crime. In Breivik’s case, it’s difficult to see how Norwegian society would rest satisfied with Breivik’s present circumstances and readily heal from the terrible trauma he inflicted.

Many would argue that justice is also about deterring future crimes, and, again, it’s difficult to see how Breivik’s cozy living arrangements will deter other dementedly xenophobic souls bent on violently rescuing European civilization from ruin at the hands of barbarian invaders from without and ideological traitors from within.

Moreover, what if Harris is wrong and Breivik freely chose to murder all those people. Was justice served in his case? That is, even if Breivik spends the rest of his life in prison, did he reap the punishment he deserves, and will his punishment deter others from committing similarly egregious crimes and provide Norwegian society with the healing and stabilizing sense that justice was served?

The horrendous case of Anders Breivik raises pressing questions about the nature of justice, free will, and responsibility more than most, and we would do well to spend more time contemplating them.

Is Torture Punishment?

let's see, if you were to be hung from your arms twisted behind your back for hours on end, followed by a nice, enduring waterboarding session...I bet the first thing you'd say after all that would be "AT LEAST I WASN'T PUNISHED!
--Anonymous

Supreme Court Justice Antonin Scalia told Leslie Stahl that torture for interrogation purposes is not prohibited by the "cruel and unusual punishment" clause of the constitution. His argument, as I understand it, is that when government representatives torture people to extract information from them about illegal or terrorist activities, they aren't inflicting "punishment," they are simply seeking information. We may not like torture on moral grounds, and we may even pass enforceable laws against it, but the "cruel and unusual punishment" clause doesn't prohibit torture because torture isn't punishment.

I tend to disagree. It seems to me that punishment is the infliction of suffering or hardship on someone for wrongdoing, and that when people are interrogated in a manner that causes them extreme suffering or hardship--i.e., when they are tortured--they are not only being interrogated but also punished, in a "cruel and unusual" manner, for the wrongdoing of deliberately withholding important information. For if it were believed that someone wasn't deliberately withholding information but was doing it subconsciously, torture would not be employed as a means of extracting this information. Torture is generally used when someone is deemed to deserve punitive interrogation if they don't divulge information voluntarily.

Scalia interview regarding torture.

How Should We Respond?

I and many others are upset over a recent story out of Santa Rosa, California. On June 19, two fifteen-year-old girls poured accelerant over a feral kitten trapped in a cage, lit him on fire, and laughed while he writhed and howled in pain. Community outrage was immediate, and money poured in for information leading to the arrest of the perpetrators of this horrendous deed. The kitten survived, is now undergoing treatment for its injuries, and it appears as though he may recover. Meanwhile, witnesses finally stepped forward and identified the girls, and they were arrested and taken to juvenile hall.

In the comments section of a local paper, people expressed their anger and hatred toward these girls, suggesting that they be punished with everything from prison to "an eye for an eye," or, in this case, a burning for a burning. Relatively few expressed any sympathy for the perpetrators of this sick act, much less urged that they receive psychological treatment rather than punishment.

I must admit that my initial response was also more vindictive than reflective. Here is what I wrote in the comments section:

Had I seen these girls laughing while that kitten burned and cried, I don't know what I might have done to them in a blind rage. It wouldn't have been right, but it would be understandable. I agree with those who say that these girls must have been mentally ill or deficient in some way to do what they did, and that such a condition is the likely result of a difficult life quite possibly filled with abuse. Nevertheless, as I grow older, I am less inclined to accept these explanations, as true as they might be, as excuses for letting the perpetrators, if they are adolescents or adults, off with a proverbial slap on the wrist. I agree with those who have suggested that these girls should be forced to spend time in burn wards watching patients undergo debridement and skin grafting. They should also be forced to watch similar treatment of the kitten they burned.

I also agree with those who suggest that we need to return to using public shaming for crimes. These girls should be forced to appear in public wearing signs describing what they did. Their parents should also be required to pay the vet bills for the kitten, or, if they are living here illegally, they should be jailed and then deported along with their daughters. Society needs to send an unequivocal message that extreme animal cruelty is utterly and completely unacceptable and will not be tolerated. Parents need to know that they bear significant responsibility for the crimes their children commit. And if would-be parents are living in human ratholes such as the Papago Court Apartments, they should think twice about having kids until they can provide them with better circumstances for their upbringing. With the right to have kids there should also be the responsibility to raise them properly along with serious consequences for failing to do this.

But a few days later I had calmed down enough to write the following in response to someone who argued that because he knew people who had been abused as children and did not proceed to abuse animals, child abuse does not cause animal abuse:

I agree with jgp that not everyone who's abused as a child ends up torturing animals as a result and that people need to be held responsible in some fashion for the terrible things they do no matter what their backgrounds happen to be. However, the fact that not everyone who's grown up in difficult circumstances does what these girls did does not prove that growing up in difficult circumstances did not cause or partially cause these girls to act the way they did, any more than the fact that not everyone who is stung by a bee goes into anaphylactic shock proves that bee stings never cause this deadly condition. Nevertheless, I believe that these girls need to face severe, but not wantonly cruel, consequences for their horrendous deed. They and the public at large need to know that we as a society regard such sadistic behavior as beyond the pale of human decency and beyond our tolerance.

As I review my comments above, I wonder whether and to what degree I may be contradicting myself. If I believe that what these girls did is sick, and I do believe this, and I believe that this sickness may result from a bad upbringing, which I think is distinctly possible, am I being consistent in calling for these girls to be publicly shamed, incarcerated, and perhaps even deported along with their parents for their criminal cruelty? If these girls could not help doing what they did under the circumstances in which they did it, am I urging that society be too punitive toward them? What IS the proper way to handle people who commit these kinds of acts?

I guess I think that people torture helpless animals because either their sick urge to do this overpowers their normal inhibitions from doing it, or they lack the normal inhibitions to keep from doing what mentally healthy people do not wish to do in the first place. Furthermore, they did not wake up one morning with healthy desires and normal inhibitions and suddenly freely choose to desire sick things so much that they acted them out. They did what they did because their mind, brain, society, and culture aligned themselves in such a manner at that particular time that they produced the acts in question.

But if this is true, what should we as individuals and as a society do about it? What should we do with these girls? Does it make any sense at all to punish to any degree a sick act that these girls, under the circumstances, could not help but commit? Or is this not unfair?

I do not know what you, dear reader, think, although I hope you will tell me. But I am inclined to think that there is such a thing as appropriate punishment for acts such as these and that it would closely approximate the multi-pronged approach I outlined earlier: incarceration, restitution, empathy training, and public shaming. I am inclined to believe that these punitive measures are not excessive and may very well work together to help create a constellation of conditions which deter these girls and others from committing similar crimes in the future, as well as provide society with the vital sense that justice has been done.