Josh Duggar is scheduled to be sentenced on May 25 after the former TLC reality star was convicted of receipt of child pornography and possession of child pornography in December. Both the prosecution and defense teams submitted their sentencing memorandums to the Arkansas Western District Court judge overseeing the case on Wednesday, and the two sides were at opposite ends of the possible spectrum.
The Probation Office’s previously submitted Pre-Sentence Report suggested “an advisory range of imprisonment of 360 months to life,” due in large part to numerous sentence enhancements due to the severity of the crime and Josh’s prior history of molestation. However, the maximum sentence allowed for the statute Josh was found guilty of is 24 months.
Those hoping for a severe punishment for Josh may be upset that the sentence is capped well below the range suggested in the Pre-Sentence Report, but the enhanced range is very important to the prosecutor’s bid to get the maximum sentence.
Sentence Enhancement Disputes
Josh Duggar’s defense team objected to several of the sentencing enhancements approved in the Pre-Sentence Report. As you would expect, Prosecutors supported the enhancements. Here is a brief summary of the enhancement reasons that were in dispute and the conflicting responses:
• Josh distributed child pornography. The Defense argues that Josh was merely found guilty of having the content on his computer, not distributing it. Prosecutors argue that a conviction is not necessary in regards to applying enhancements. They also argue that Josh demonstrated a clear understanding of the peer-to-peer sharing programs that he used to view the photos and videos in question, so he must have been aware that the files on his computer would also be accessible to others using the programs.
• Josh was in possession of material that depicted sadistic and masochistic conduct or other depictions of violence. The Defense argues that Prosecutors claimed that Josh only viewed some of the content contained in .zip files portraying sadistic and masochistic conduct. Prosecutors countered by describing some of the content that was found on Josh’s computer, ALL of which would easily qualify as “sadistic and masochistic conduct or other depictions of violence” involving a minor. (Just reading the descriptions made me a bit ill.)
• Josh displayed a “pattern of activity involving the sexual abuse or exploitation of a minor.” The Defense argues that the multiple instances of Josh molesting his sisters were “uncharged allegations,” plus “this conduct allegedly occurred more than 20 years ago when Duggar himself was a child.” Prosecutors argued that Josh’s molestation of his sisters has been corraberated by multiple witnesses, and even Josh himself.
…evidence produced during pretrial hearings and at trial, including the testimony of his father, Jim Bob Duggar, and his long-time family friend, Bobye Holt, reflect that Duggar engaged in the exact conduct he now denies occurred and is more than sufficient to support the application of this enhancement based on a preponderance of the evidence.
Prosecutors also cite Josh Duggar’s civil suit against various Arkansas state and local law enforcement agencies after police reports documenting the sexual molestation at issue were released publicly. “[Josh] Duggar, by and through his counsel, again Mr. Story, included in his publicly filed complaint a ‘statement of facts’ that Duggar attested to, verifying that all the statements were true and correct.”
• How many images Josh was in possession of. The Pre-Sentencing Report is based on Josh possessing/viewing more than 600 images. The Defense argues “that only 127 images were allegedly located.” Prosecutors provide a list of images, videos, .zip files and torrent files found on Josh’s computer. After noting that a video counts as 75 images, the tally of those files is easily more than 600. “The facts adduced at trial prove that Duggar’s offense conduct involved over 600 images based on the hundreds of images and at least seven video files discussed above.”
Prosecutors Ask For 20 Years
Based on all the facts of the case, including Duggar’s prior sexual exploitation of multiple minors discussed herein, and in consideration of the extraordinary efforts Duggar took to obtain and view child sexual abuse material (CSAM), the nature of the CSAM he obtained and viewed, his efforts to conceal his criminal conduct, and his refusal to take accountability for or acknowledge any of his criminal conduct, the Government recommends the Court impose a guideline term of imprisonment of 240 months.
Duggar’s History and Characteristics
At present, Duggar is a 34-year-old male with no criminal history. (PSR ¶ 113). However, the facts produced in pretrial hearings and at trial establish that he has previously molested four (4) minor females, either while they were sleeping (hence incapacitated) or too young to understand what Duggar was doing or defend themselves from his criminal behavior. And while Duggar is not before the Court to be sentenced specifically for this conduct, his past behavior nevertheless provides an alarming window into the extent of his sexual interest in children that the Court should consider at sentencing. This past conduct, when viewed alongside the conduct for which he has been convicted, makes clear that Duggar has a deep-seated, pervasive, and violent sexual interest in children, and a willingness to act on that interest. A guidelines sentence is warranted to appropriately account for his history and characteristics.
Prosecutors also point out the devastation and damage caused by child pornography and how important it is to impose substantial sentences to deter the practice. “The sentence in the instant case, if nothing else, must further the goal of protecting the public—specifically the most vulnerable members of the public, children—from future crimes committed by Duggar and others like him. Indeed, as a general matter, ‘the deterrence objective of sentencing is “particularly compelling in the child pornography context.”’”
Defense asks that Josh Duggar receive 5-year sentence
Josh Duggar’s defense team tries to present their client as an upstanding citizen, a great husband, and a great father. They argue that he has never been convicted of a crime prior to his child pornography conviction, and they essentially promise that Josh won’t do it again.
“If ever there were a defendant standing before this Court who is as committed to never finding himself anywhere close to this situation again, it is Duggar,” the Memorandum’s Conclusion reads. “As he moves forward into the next chapter of his life, Duggar continues to have so much good to offer the world. We ask that this Court give him that opportunity.”
The Defense admits that Josh Duggar refuses to admit guilt and iterate that he plans to appeal the guilty verdict. “Given the unique circumstances of this case, Duggar respectfully requests a sentence of 60 months.”
I wanted to try to pare down the Defense’s Memorandum as much as possible, but there is just so much that I know those following the case will want to read. As a result, I have included lengthy and numerous excerpts below. Everything from this point until the end of the post is taken directly from the filing.
Defendant’s Sentencing Memorandum and Motion for Downward Variance
Defendant Joshua Duggar (“Duggar”), by and through undersigned counsel, respectfully submits this memorandum to assist this Court in fashioning a sentence that is “sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a). Given the unique circumstances of this case, Duggar respectfully requests a sentence of 60 months’ imprisonment.
The 34-year-old father of seven who stands before this Court for sentencing has lived an admirable life while navigating unique challenges associated with being in the public spotlight since childhood. Duggar pleaded not guilty and proceeded to trial. He now stands convicted of a serious offense and, as such, this Court must pronounce a sentence. However, in determining the appropriate sentence in this case, Duggar asks this Court to recognize him for the person he is and the person he can become.
Prior to this case, Duggar had never been charged with, let alone convicted of, a single criminal offense throughout his entire life. In stark contrast, he worked exceptionally hard, has always been fully devoted to his family, and exemplified selfless acts outside of the public spotlight that speak to his true character. Indeed, as letters from his family and friends demonstrate, the real Josh Duggar is not the caricature often portrayed in the public spotlight to sell a tabloid or to generate internet traffic—it is a profoundly hardworking man committed with every grain in his body to his family, his faith, and to helping those around him at any cost. That is the man who stands before this Court for sentencing.
Even before this Court pronounces its sentence, Duggar’s life has already been shattered. His reputation, career, and family have all suffered. However, what speaks to Duggar’s true character is that his family remains firmly by his side and they yearn for the day when he can return home to them. His seven children and loving wife are struggling to make do without him but eagerly await the day when he will return to care for them, to love them, and to provide for them. As his wife Anna shares, “the happiest part of the day by far is when Daddy comes home from work, and his cheerful voice fills the house.” And with the love and support of his family, Duggar will lead a productive and lawful life following any sentence imposed by this Court.
…while he maintains his innocence and intends to exercise his right to an appeal, Duggar accepts that the crime for which he is being sentenced is serious and that this Court must impose a punishment. But in crafting that punishment, Duggar asks that this Court consider this crime within its proper context and consider the person Duggar really is. It is against this backdrop that Duggar respectfully requests that this Court sentence him to 60 months’ imprisonment as that is “sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a). As evidenced by his perfect performance on pretrial bond, no matter what sentence is ultimately imposed, this is a defendant who will never find himself before this, or any other, Court ever again and a defendant who will abide by whatever conditions of supervised release this Court imposes.
The History and Characteristics of the Defendant – 18 U.S.C. § 3553(a)(2)
Duggar is a 34-year-old man who is recognized by those who know him best as a man deeply devoted to his family, his faith, and to those around him. His wife and 7 children adore and respect him and cannot wait until he comes home.
Duggar was born in Fayetteville, Arkansas and, other than a short stint in Washington, D.C., has spent his entire life in Northwest Arkansas. Duggar maintains an extremely close bond with his parents and his siblings. Indeed, prior to his arrest in this case, Duggar and his wife and children were residing at his parents’ home while his family’s home was undergoing renovations. Duggar and his wife, Anna, married in 2008 and they are profoundly committed to one another and to providing their 7 children with a safe and caring home.
By any measure, Duggar’s childhood was atypical. As a child, Duggar and his family had the unique experience of being thrust into the spotlight from the success of a reality show, “17 Kids and Counting,” which subsequently became “18 Kids and Counting,” and, ultimately, “19 Kids and Counting.” And the truth is, this presented challenges for Duggar. It was hard growing up in front of television cameras and being recognized virtually everywhere he went in public. Indeed, one can hardly imagine the challenges associated with being a child whose everyday life is viewed by the public and, in certain instances, being criticized by the media and complete strangers. Even into early adulthood, living under the microscope and being judged and criticized by the media took its toll on Duggar and certainly complicated aspects of everyday life for him and his family. But, notwithstanding this atypical life, Duggar has worked hard to become his own man, separate and apart from the fleeting fame that comes from starring in a reality television show.
Throughout his life, Duggar has worked extremely hard to provide for his family. Following in his father’s footsteps, Duggar has worked in auto sales and real estate investment and, more recently, in building and renovating homes. While Duggar’s work pursuits are certainly impressive, he is far from one dimensional and the letters from his family and friends make this abundantly clear.
Anna describes her husband as “considerate, respectful, quick to forgive, patient, and genuinely the kindest person I know.” She shares that he “is an engaged dad who gladly throws a football with his sons, listens to our daughters play a new song they have learned on the piano, helps answer homework questions, or lends a hand sweeping up spilled crackers. He is a kind, loving, supportive, and caring father and husband—his primary focus in life.”
And Anna is not alone in her reflections of the man Duggar is. Instead, her observations are corroborated by the many other letters submitted for this Court’s consideration. Nicole Burress shares, “Josh’s life pursuit has been raising a delightful family, and he has been diligent to raise extraordinary children” and that his children “are deeply grieved by his absence[.]” As Raphael Perez frames it, “[w]hen you see the family together you witnessed the genuine love that they share for one another. The kids roaming about playing, but always returning to their daddy for guidance, comfort, and love.” Anna’s father explains that his son-in-law “is truly a fantastic Daddy and he truly loves his family.” Duggar’s mother, Michelle, notes, “Joshua is a loving and patient man, striving to be a blessing and provide for his family! He has also spent quality time with his wife and children learning life skills together and going on family outings. Side by side, Joshua and his family have built forts, learned how to work on bicycles and other vehicles, gone camping, hiked, fished, and played countless games and sports—together!”
In addition to being a wonderful father and husband, what stands out about Duggar is the extent to which he has selflessly, for decades, served others—not only financially but with actual boots on the ground.
Anna notes that Duggar is “a man who frequently volunteers his time, services, and resources, striving to contribute to our community and people in need.” She explains that a close friend of theirs passed away 4 years ago and Duggar decided to financially support this widow and their young children—completely beyond the public’s view despite living a life largely in the public spotlight. Anna explains, “[f]or the past 4 years, Joshua has quietly and faithfully made significant financial contributions to meet their needs. This was not because we have excess income, but because Joshua has a compassionate heart, and he is willing to make personal sacrifices for the benefit of others.” The recipient of these contributions has shared with
undersigned counsel the profound impact that Duggar’s generosity has had on her life. This reflects who Duggar really is—no matter how strangers or the Government choose to portray him.
For Duggar, generosity comes naturally, and not only in the form of money. As Pastor David Waller explains, “[i]t was Joshua Duggar who offered to help me finish a large deck project for our in-laws giving of his time and money during Christmas week to complete a large deck with a handicap accessible ramp.” LaCount Reber, the gentleman with whom Duggar resided while on pretrial bond, noted that “[i]n every situation [Duggar] always looked for ways to be helpful…On his own accord he would see a situation that needed some help and would voluntarily pitch in to try to fix it.” His mother explains, “Joshua has a tender heart and he is compassionate toward others. If someone is having a difficult time, he is one of the first to encourage or try to help them in a tangible way. He and his wife and children have helped many others by doing cleaning and repair projects and lending a helping hand.”
At his core, Duggar is a good person who cares deeply for the wellbeing of all those around him. These stories—and the many others contained within the letters submitted for this Court’s consideration—reflect a lifetime of charitable acts and good citizenship. And this should factor into this Court’s determination of an appropriate sentence in this case.
Federal courts routinely recognize a defendant’s record of charity and benevolence as warranting a reduced sentence. Perhaps most notably, the United States Court of Appeals for the Seventh Circuit recently affirmed the probation sentence H. Ty Warner, the billionaire creator of Beanie Babies, received for evading $5.6 million in federal taxes by hiding assets in a Swiss bank account. See United States v. Warner, 792 F.3d 847, 850 (7th Cir. 2015). The sentencing court acknowledged Warner’s “private acts of kindness, generosity and benevolence” and emphasized that “many of them took place long before Warner knew he was under investigation.” Id. at 854.
Duggar’s lifetime—long before this investigation—is one of genuine and sincere kindness, generosity, and benevolence.
Each and every letter submitted for this Court’s consideration makes clear that Duggar cares deeply for his wife and his children. While the reality that Duggar is going to be sentenced to federal prison is undoubtedly frightening for Duggar himself, it has paralyzed his family with fear. As Anna explains, “[m]y children and I rely on Joshua for financial, emotional, and physical support.” David Waller notes that he heard Duggar’s children “cry themselves to sleep wanting their daddy to be home” and respectfully asks this Court to “consider how much his wife and seven children need him in their lives; to be nearby for visits, accessible for communication, and brought back home to provide not just the financial, but spiritual guidance of his family.” Stated simply, any punishment imposed on Duggar is also a punishment imposed on his family.
Federal courts have historically recognized extraordinary family circumstances as an appropriate basis for a downward departure pursuant to U.S.S.G. §5H1.6 or a downward variance, which Duggar seeks in this case.
…Given that Duggar has 7 children and provides essential daily care and is the sole provider for the family, Duggar respectfully requests that this Court take this extraordinary family circumstance into consideration when fashioning an appropriate sentence under the Section 3553(a) factors— especially because this Court can impose conditions of supervised release in lieu of a prolonged prison sentence.
The bottom line is that Duggar’s family and friends—the people who know him best— remain extremely supportive while fully aware of the conviction that brings him before this Court, and that speaks to the character of any person. Duggar has immense support that will enable him to make the most of the rest of his life and to work hard to ensure that his children’s lives are impacted as little as is possible by the situation in which he finds himself.
The Need for the Sentence Imposed – 18 U.S.C. § 3553(a)(2)
This Court must fashion a sentence to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, to afford adequate deterrence, to protect the public from future crimes, and to provide a defendant with necessary treatment. See 18 U.S.C. § 3553(a)(2). A sentence of 60 months’ imprisonment accomplishes these sentencing objectives.
When considering the unique circumstances presented by this case—especially the extremely short period of time during which the offense was allegedly committed with no further attempt to commit any unlawful activity afterwards even with no idea that an investigation was ongoing—makes clear that a sentence of 5 years in federal prison is sufficient.
A sentence of this length reflects the seriousness of the offense and will certainly deter and protect the public from future criminal conduct. Duggar is simply not a defendant who will commit any crime in the future. Prior to being charged with this offense, Duggar was on the right track and, thankfully, that right track eagerly awaits him upon his release. The support of Duggar’s immediate family along with the support of his large extended family is as unique as it is powerful. Upon his release, Duggar will not be in a position to fail—he will land in a position to succeed and he will seize that opportunity and work tirelessly to ensure that his family never has to go another day without him by their side.
Furthermore, while Duggar maintains his objections to the advisory Guidelines calculations as set out in the final PSR as discussed supra, it is important to note that many courts and scholars have long noted that the Guidelines applicable to child pornography charges in particular are excessively harsh.
Because the majority of the enhancements which drastically drive Duggar’s advisory Sentencing Guidelines range upwards apply in virtually every child pornography case, they have absolutely no unique significance to the punishment decision in this case and contravene what Section 3553(a) statutorily requires.
Specifically, in this day and age, the fact that an offender convicted of child pornography offenses did so through the use of a computer is meaningless. Even in 2009—and computers and mobile electronic devices have only become more ubiquitous since then—97.2% of offenders sentenced for child pornography offenses received the use of a computer enhancement. See Dorvee, 616 F.3d at 186. The fact that Duggar allegedly used a computer has absolutely no significance.
With respect to the enhancement for material depicting sadistic or masochistic conduct, the justification can only be that such images cause more harm to the victims of child pornography. But while that would perhaps be understandable, the interesting reality is that is actually not the purpose for which the enhancement was promulgated. As the United States Court of Appeals for the First Circuit explained,
That an image ‘portrays sadistic or masochistic conduct’ does not require that it depict actual sadistic conduct; if that were the Sentencing Commission’s intent, there would be express language to that effect. The language it did choose is to the contrary. Webster’s Third New International Dictionary defines ‘portray’ as ‘to represent by drawing, painting, engraving,’ ‘to describe in words,’ and to ‘enact.’ The Guidelines simply do not require the image to be an accurate documentation of real sadistic conduct.
United States v. Hoey, 508 F.3d 687, 692 (1st Cir. 2007). In other words, the purpose behind the enhancement was predicated on the notion that an image that portrays sadistic conduct justifies a more severe sentence, regardless of whether sadistic conduct ever actually occurred.
Ultimately, the result of the compilation of values assigned to the offense characteristics in Duggar’s case—which are largely the same ones found in all child pornography cases—results in an advisory Guidelines range radically higher than without the “specific offense characteristics” being included.
Duggar does not dispute that 60 months’ imprisonment is the minimum allowable sentence in this case—and that is the below-Guidelines sentence he expressly asks this Court to impose. However, even today—pursuant to the drastically-increased base offense level and “specific” offense characteristics (that apply in virtually all cases)—a sentence of 60 months is just barely below the advisory Guidelines range.
Specifically, if the “specific” offense characteristics enhancements (that apply in virtually all cases) were not applied, Duggar’s total offense level would be 29, resulting in a Guidelines range of 87 to 108 months. Indeed, as the Sentencing Commission notes in its most recent report concerning fiscal year 2019, “less than one-third (30%) of non-production offenders received a sentence within the guideline range” and the “majority (59%) of non-production child pornography offenders received a variance below the guideline range.”
And if this Court were to correctly conclude that a 2-level enhancement for “knowing” distribution and a 5-level increase for an alleged “pattern of activity” are not applicable, Duggar’s total offense level would be 22, resulting in a Guidelines range of 41 to 51 months. As such, a sentence of 60 months would actually constitute an upward variance.
Further, if Duggar had been sentenced for his crimes in 1991 as opposed to 2020, the base offense level of 13 would result in a Guidelines range of 12 to 18 months’ imprisonment. Through that lens, the sentence requested by Duggar—60 months—is fair but, by no stretch, lenient. Rather, it is sufficient, but not greater than necessary, which is precisely what the law requires.
Despite the courts’ and the Government’s most well-intentioned and aggressive efforts, in cases such as this, the ever-increasing prison sentences meted out since the 2003 amendments to the Sentencing Guidelines have had no discernable impact on deterring the exponential growth of the problem. See Motivans, M. & Kyckelhahn, T, Bureau of Justice Statistics Special Report, Federal Prosecution of Child Sex Exploitation Offenders, 2006. The United States Department of Justice itself acknowledged that “prison sentences are unlikely to deter future crime” and that “prisons actually may have the opposite effect.” “Five Things About Deterrence,” U.S. Department of Justice (July 2014). Based on the Department of Justice’s research, “[i]ncreasing the severity of punishment does little to deter crime.” Id.
To be clear, while no one seeks to minimize the seriousness of the crime for which Duggar is being sentenced, it is important for this Court to fully consider a full picture of Duggar’s character and the bases—both legal and factual—that warrant the sentence Duggar is requesting.
In addition to observing that the enhancement for having 600 or more images was applied in 77.2% of cases in 2019, the Sentencing Commission also noted that the median number of images possessed by offenders in 2019 was 4,265, “with some offenders possessing and distributing millions of images and videos.” Again, not to minimize the seriousness of the offense at issue in this case, it is important to understand that even accepting the allegations as true for the purpose of sentencing, the offense here was far less egregious than the lion’s share of “similar” cases.
The bottom line is that with a lifetime of sex offender registration requirements and the inherent shame and humiliation that comes with this history in a Google era, Duggar will have to suffer the consequences of his conviction for the rest of his life—regardless of how long he is in prison. See, e.g., United States v. Nesbeth, 188 F.Supp.3d 179, 188 (E.D.N.Y. 2016) (noting that collateral consequences may be considered as bearing on just punishment and accordingly factoring such consequences into a Section 3553(a) analysis). The fact that he will be a registered sex offender carries with it severe punishment. The ramifications of supervised release, and the corresponding limitations on his freedom, are intrinsically punitive and, in some ways in the context of convicted sex offenders, are actually worse than jail.
A sentence of 60 months undoubtedly reflects the seriousness of the offense, promotes respect for the law, provides just punishment, affords adequate deterrence, and protects the public from future crimes. And, in this case, a sentence of 60 months is sufficient, but not greater than necessary—and that is what the law requires.
The Kinds of Sentences Available – 18 U.S.C. § 3553(a)(3)
Duggar’s performance while on pretrial bond was unblemished. He complied with all requirements without exception. This is confirmed by the final PSR (see Doc. 146 at ¶ 24) and by a letter submitted to this Court by LaCount Reber, the individual with whom Duggar resided while on bond. Mr. Reber noted, “Joshua was conscientious about following the rules that were set by the court during his stay with us. He was given very specific guidelines relating to times of departure and return from work. He would set his alarm to make sure that he left exactly during the window that he was given.” Stated simply, Duggar is a man who will happily abide by any and all conditions of release, without exception. Conditions of release can replace the need for a longer period of incarceration in this case.
…While the law requires Duggar to be sentenced to a term of imprisonment, Duggar respectfully submits that conditions of release following any term of custodial imprisonment imposed in this case can supplant any need for a more lengthy than necessary period of incarceration. The felony conviction alone has hit Duggar hard, and the collateral consequences are real.
As the age-old adage goes, “justice must be tempered with mercy.” Duggar accepts that he is before this Court for sentencing for a serious crime and that this Court must impose a penalty. That is justice. But Duggar also appeals to this Court’s discretion to temper that justice with mercy. If ever there were a defendant standing before this Court who is as committed to never finding himself anywhere close to this situation again, it is Duggar. As he moves forward into the next chapter of his life, Duggar continues to have so much good to offer the world. We ask that this Court give him that opportunity.
For all the reasons set forth in the PSR, in this memorandum, and in the numerous letters submitted for this Court’s consideration, Duggar asks this Court to impose a sentence of 60 months to be followed by a term of supervised release. Under the circumstances of this case, such a sentence will be sufficient to satisfy all the purposes of sentencing and is appropriate under Section 3553(a).