Jared Fogle's Judge Gave Him More Prison Time Than the Prosecutors Asked For. Should She Have?

On Thursday, Judge Tanya Walton Pratt sentenced former Subway pitchman Jared Fogle to more than 15 years in prison--more than the 12.5-year sentence sought by the prosecutors. Was it appropriate for Judge Pratt to go beyond even what the government was requesting?

There's no question that this was legally permissible. In plea agreements, it's common for the parties to agree on sentence recommendations. They may agree to make a single joint recommendation, or agree to certain constraints on what they'll request. The Fogle case was an example of the latter; the government had agreed not to ask for more than 12.5 years, and the defense had agreed not to ask for less than five (although five years would have been the mandatory minimum in any event).

In either scenario, though, both sides understand that their recommendations aren't binding. The judge is legally authorized to impose any sentence between the mandatory minimum (if any) and the statutory maximum. Just in case there's any doubt, every defendant who enters a guilty plea is warned, before doing so, that the judge won't be bound by either party's sentencing recommendation and the defendant won't be allowed to withdraw the plea if the sentence is greater than anticipated. (There's one type of plea deal that actually does constrain the sentencing judge, but it's rarely used and carries its own set of complications.)

But even if it's legal for a judge to go outside the range of the parties' recommendations, is it a good idea? I've never been a judge, but I've become convinced that if I were ever in that position, I'd have to have a really good reason to do that.

I understand why judges want to maintain their own independence in sentencing. Legally, it's ultimately the judge's role to determine what sentence is appropriate for a particular crime committed by a particular defendant, and the judge may feel entirely justified in reaching a conclusion different than that proposed by either party to the case.

But that view arguably overlooks three important principles: (1) our criminal justice system is an adversary system involving two opposing sides, each of which seeks its preferred outcome; (2) in our system, the prosecutor stands in the community's place and advocates what the community "wants"; and (3) a negotiated resolution virtually always gives each side something other than its own optimal result.

In a typical criminal case the prosecutor, representing the community, has decided to charge the defendant with some crime and wants the defendant to be subjected to the punishment "fitting" that crime. The defendant would usually prefer not to be convicted or punished at all.

Both sides have the option of taking the case to trial, where each side tries to get what it wants. Almost always, however, they reach a negotiated resolution that's acceptable to both sides. The defendant usually gets something less severe than the sentence that would follow a trial. The government gets a host of benefits--the certainty of a conviction, the saving of time and resources, and a measure of closure (without the stress of testifying) for any victims.

In a criminal case, though--unlike in most civil cases--the parties' agreement isn't the end of the matter. They still have to get the judge to bless their deal, and sometimes this doesn't happen. The judge may decide, for example, that the prosecutor's recommended sentence isn't sufficient, and that the "right" sentence is something harsher. This was presumably what Judge Pratt concluded in Fogle's case.

But there are some problems with this approach. An agreed-upon sentence may not be the "right" one from the community's standpoint, but in negotiating a resolution--in which the defendant gives up a large number of critical rights, including the right to a jury trial--the prosecutor and the community have decided to give up some value in return. However we might feel about any particular offender or his crime, it's at least arguably problematic for a judge to then "sub in" for the prosecutor and decide on the community's behalf what the sentence should be.

This is especially true given that the judge is likely to know much less about the case than the parties. The prosecutors and the defense lawyers may have spent months or even years hashing out a resolution. That resolution could be based on various complex factors including the likelihood of a guilty verdict and the burdens to the government and others of trying the case. A judge coming in at the end of this process may not fully appreciate all that went into the parties' ultimate recommendations.

Finally, speaking as a defense attorney, the unpredictability of this process makes resolving cases more difficult. Whether we like it or not, a huge portion of the criminal justice system is based on plea bargaining; in the federal system, for example, well over 90% of cases are resolved through guilty pleas. We've obviously decided as a society that there are significant benefits to making negotiated pleas a major part of the system. And if so, we presumably want to set up the system so such negotiations are productive and efficient.

But knowing that a judge can override a deal throws a major element of uncertainty into the process. If my client is charged with an offense carrying a maximum 20-year sentence and the prosecutor offers a one-year deal, the client may consider that an acceptable outcome, and the prosecutor obviously does too. But I have to tell my client that although the judge will probably impose the one-year sentence, he could actually get up to 20 years. When this unpredictability causes a client to decline a deal that would otherwise be in both sides' interests, it seems that something has gone wrong with the system.

I can't say Judge Pratt was wrong in going outside the range of the parties' recommendations. She knows the case better than I do (though probably not as well as the parties and their attorneys who agreed to and made those recommendations). But every time a judge does this, it overrides a mutually negotiated resolution and adds to the uncertainty of future cases and negotiations, so we have to hope that when something like this is done it's after a lot of thought and consideration.