The feds get Shortey

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.

Oklahoma Republican pleads guilty to child sex trafficking after getting caught with 17-year-old boy

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

6 thoughts on “The feds get Shortey”

  1. Yes zero tolerance and mandatory minimums sound good until you come up against reality.

    People like that stuff because the rush of purity makes them feel good about themselves.

  2. Do I detect the first signs of a moral panic? Satanic paedophile rings maybe, or witches?

    The harsh sentence on Shortey is exacerbated by the dangers of violence such felons reputedly face in prison. Abusing child molesters allows other criminals to feel superior. Perhaps in a federal prison he will be properly protected; which is an expensive business.

    1. "Moral panic" has a real analytic meaning, but in common usage means simply "people feeling more concern about this issue than I feel."

      No one calls concerns about racism or homophobia or global warming "moral panics." That's not because anti-racists or gay-rights advocates or anti-global-warming activists never engage in threat-expansion rhetoric or witch-hunting, but because anyone who says "moral panic" is going to be on the right side of those issues. The question of how much damage is done to children by the commercial manufacture of sexual images ought to be resolved with facts, rather than question-begging jargon.

  3. I'm somewhat ambivalent about this in the sense while I agree with Mark's larger point that it's unjust to apply a law meant for combatting sex trafficking rings under these circumstances, there's also a part of me that sees this poetic justice of a sort. Shortey is an arch hypocrite. And some of the complaining reminds me of the squeals of the squared up businessmen upon learning that RICO wasn't limited to punishing otherwise hard to prosecute criminals with names ending in vowels. My intellect is with Mark but my heart is gladdened to a posturing "law and order" conservative get what might arguable be his comeuppance—truth be told my first thought was "instant karma gonna get you".

    But I'm also uneasy commenting on this case because there's something about the reported facts that doesn't sit quite right. I understand that it's often quite jarring to see the facts of a long prosecution boiled down to a couple of paragraphs but there's a lot here that is difficult to follow; starting with how the rent boy's girlfriend came to follow him and why the father's reaction upon learning that his son was in a motel room with a man was calling the police?

    And what, exactly, did he tell the local gendarmerie that caused them to zoom out to said motel and get Shortey? I have some passing familiarity with vice squads (although admittedly not in a small, very conservative community) and I find it hard to believe that dear old dad just called them up on the phone and said he thought he son was turning a trick at the no-tell-motel and they just raced out there in time to catch Shortey and the rent boy getting it on. Perhaps the years have colored my memories but I don't remember vice cops being quite that energetic.

    And, bearing in mind that this is a family oriented blog, I will just point out that unless this tryst took place next door to police headquarters and the officers rushed over the instant they hung up the phone, there was either a lot of conversation and foreplay or Shortey and the kid have something to be genuinely proud of. More likely, though, there's some significant backstory that we're missing.

    Also, on the subject of backstory, why would the feds take over a case that's apparently working its way through the local criminal justice system in an apparently normal way (e.g., free of political influence) to a normal conclusion. I can see why the local DA might want to unload what was probably a heater case but why exactly would the feds take it? I understand that Oklahoma is Oklahoma but there's no reason for the case to be in the federal system and I'm curious how it came to be there. Is there more to this case then meets the eye?

    1. I was wondering the same thing. Were the shared videos of the kid in question and the solicitation for pictures also? (In which case it sounds as if the boy was being, uh, recommended) Or were the other charges the result of evidence obtained under a search warrant after the arrest yielded probably cause? (It also sounds to me as if this was a sting, with the kid's girlfriend and dad aware that someone was trying to hire him for sex that the prospective employer considered "not legitimate", and the police tipped off. Whether they knew whom they would be arresting is another question yet.)

      1. I agree that it sort of feels like Shortey was targeted, perhaps by the feds who were going after a ring of sex traffickers with whom he had some connection (client, talent scout, worker, who knows what). It would certainly explain (and, in my mind, justify) the escalating federal charges and the severity of Shortey's punishment if, after the feds told him to flip or be crushed, he refused and they very reasonably crushed him.

        Alternatively, it seems possible that Shortey has enemies, at least one of whom is very powerfully connected to federal law enforcement and most particularly to the local US attorney's office. Either way, I have the feeling that there's more to this than meets the eye.

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