If you’ll get over chortling about the fact that the Oklahoma state senator who just pleaded guilty to child sex trafficking was Donald Trump’s Oklahoma campaign chair last year, the case raises some serious questions about federal law and sentencing.
The facts appear to be simple: a 17-year-old boy met Sen. Shortey on line and asked him for help in earning money. Shortey offered him money for sex. The boy agreed, and they met in a motel room. The boy’s girlfriend, who had followed him to the motel, called his father, who phoned the police, who came and busted the pair in flagrante.
Shortey was first charged under Oklahoma law with “soliciting prostitution of a minor, prostitution within 1,000 feet of church, and transporting for the purpose of prostitution.” (I’d like a slow, careful explanation of why the crime was aggravated by the fact that there was a church within a 333-yard radius of the motel, but perhaps we can leave that for another time.)
The state charges were dropped after he was indicted federally for sex trafficking of a minor and two counts of child pornography: one for sharing videos for with two individuals and another for soliciting a minor for photos of himself. Shortey has just pleaded guilty to the sex trafficking charge, for which he faces a mandatory minimum sentence of 10 years in federal prison (which, with good time, means about 8 1/2 years behind bars). The maximum is life.
Note the elision here. The federal law is designed to get people who run commercial juvenile prostitution enterprises, and in particular enterprises involving interstate or international movement of juvenile sex workers, often involving coercion or deception. That’s as horrible a crime as it’s possible to imagine – morally much more culpable than, for example, homicide done in the heat of passion – and fully justifies extremely harsh sentencing. But Sen. Shortey didn’t do any of that. He purchased sex from a 17-year-old, in a state where the age of consent is 16. (Oklahoma law distinguishes commercial from non-commercial sex, so that the boy’s being under 18 made the offense a more serious one.) Shortey didn’t use coercion or trickery, or in any obvious way abuse his public office.
Is it reasonable to punish him for buying sex? There’s a legitimate debate about that, but I think “yes” is a justifiable answer. (If the goal of prostitution laws is to protect sex workers, the laws ought to be asymmetric: buying sexual services should be criminalized, but selling them should not.) Is it reasonable to punish him more severely because the seller was underage? Again, that seems justified. But to hit him with a 10-year mandatory aimed at pimping seems like a stretch. His conduct was clearly forbidden by the definition of “sex trafficking” in the statute, but it wasn’t actually “sex trafficking” in the common-language sense of the term.
So why did Sen. Shorty plead guilty to a crime carrying a 10-year mandatory? Because the kiddie-porn violation involving asking a minor for a photo – which technically amounts to “producing” kiddie-porn – carries a 15-year mandatory.
This is another example of a slippery definition. If you imagine someone who arranges to have minors sexually abused in order to record photo and video images of that abuse for commercial sale, it’s hard to imagine a sentence harsh enough. And it’s easy to see how a statute designed to criminalize and punish that sort of activity might be written broadly enough to bring what Sen. Shortey did within its ambit. But 15 years in prison for asking a boy for a nude selfie? Seriously? That’s precisely the sort of problem a judge is supposed to sort out at sentencing.
This case illustrates the twin evils involved with mandatory minimums. First, they disable the judge from saving a defendant from the full consequences of statutory stretch. Second, they coerce guilty pleas. In this case, the feds had Shortey dead to rights on the child-prostitution charge, but he took a plea not because he was guilty of that but because he faced an even stiffer mandatory on the kiddie-porn charge.
No, I’m not going to shed many tears for a man who made a political career out of support for excessive drug sentences and opposition to LGBT rights and used fear of “trafficking” to push the nativist crusade against “sanctuary cities.” It’s the First Law of Karma in action: what goes around, comes around. But what’s happening to Sen. Shortey is also happening to lots of people who don’t deserve it nearly as much.