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May 17, 2022
You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?
In this post back in December, I asked "How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?," and I speculated that he could be looking at a federal guideline range of a decade or longer. This month, sentencing memos were submitted ahead of Duggar's scheduled sentencing on May 25, and the start of the Government's 32-page Sentencing Memorandum notes the guideline calculation and the statutory ceiling in this matter, as well at the Government's sentencing recommendation:
U.S. Probation’s Case calculation under the United States Sentencing Guidelines (Guidelines) set out in the final PSR reflects an advisory range of imprisonment of 360 months to life, which will be capped by the offense maximum of 240 months set by statute for Count One in the Indictment....
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.
Defendant Duggar's Sentencing Memorandum and Motion for Downward Variance, which also runs 32 pages, concludes its introduction with a very different recommendation:
[W]hile 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.
This lengthy Law & Crime article, headlined "Federal Prosecutors Urge Judge to Hand Josh Duggar Maximum Punishment for Downloading ‘Depraved’ Child Sexual Abuse Materials," provides some more context for the sentencing advocacy in this celebrity(?) case.
Prior related post:
May 17, 2022 at 02:24 PM | Permalink
Comments
Statutory max of 240 months certainly won't surprise me here, given that it is already a 33% discount off the guidelines, coupled with the evidence of past contact offenses.
Posted by: Soronel Haetir | May 18, 2022 12:31:53 AM
This is one of those cases where standing on your rights to trial and appeal really drives up the appropriate sentence due to factors other than a pure "trial penalty." On the record before the sentencing court, there's no remorse, no understanding of how his crimes affected victims, and no evidence that he is amenable to the hard work of rehabilitation (which I understand in the context of child sex offenses to require admission of one's crimes and deviant thoughts/impulses). That, combined with the history of hands on offenses, makes me think this will be closer to 20 than 5.
This shows one of the merits of second-look statutes -- I would like to give him 20 with the option of checking in on him several years after his conviction becomes final to reassess his prospects of rehabilitation at a time his desire to appeal isn't clouding the assessment. That's not to say he should get credit for belated acceptance of responsibility, only that I would be open to reevaluating the absence of remorse and poor chance of rehabilitation.
Posted by: Jason | May 18, 2022 10:34:29 AM
It will be interesting to see if there is any political reaction to this sentencing. We are barely two months removed from a confirmation hearing in which sentences for child porn was a big deal.
However, we are dealing with a celebrity. I don't know how the current charges have impacted how he is viewed by his former fan base, but he used to have the support of the segment of the population that is the base of those Senators who were leading that charge. So do those Senators ignore any sentence that is less than the max. And if it is the max, do they try to paint Duggar as a scape goat being picked on by a "liberal" judge to make a point (apparently, the judge is an Obama appointee).
Posted by: tmm | May 18, 2022 10:57:29 AM
All great points here, in a case that provides yet another reminder of how many elements --- philosophically, politically, practically --- come to bear at sentencing. I also think it notable, especially in light of all the aggravating behavior stressed by the feds, that the trial only included counts that create a 20-year max when the guidelines recommend 30-life.
Posted by: Doug B. | May 18, 2022 11:24:09 AM
I find it remarkable that the government is calling the alleged hands-on sex offenses the "most important" factor when they were (i) uncharged and unproved, (ii) 20 years old, (iii) committed when D was 12 years old, and (iv) totally unrelated to the offenses of conviction.
I understand the general propositions that everything's fair game at sentencing, and that sentencing facts need only be proved by a preponderance, but this case seems to push those propositions right up to Due Process/Sixth Amendment limits.
Posted by: AFPD | May 18, 2022 11:42:52 AM
This truly will be interesting - there are so many aggravating factors, yet just an many mitigating factors carefully explained by defense counsel. Practically, this is not the worst of the worst when it comes to Receipt of CP. There have been countless offenders with far more images, a far greater number series identified by NCMEC, and some of whom engaged in more egregious conduct but Duggar still received and possessed a number images and videos and did so in a way that is unique. Not only did he access the TOR, but he created a linux partition on his computer to download CP but also to avoid the software that was meant to prevent/help/avoid going and viewing that CP. But, you still have to view that with all of the 3553(a) factors and not just the nature and circumstances of the offense, but also the history and characteristics of the offense, amongst the other factors. I think most, if not all Judges will tell you sentencing is by far the most challenging and difficult part of their job - and this case is no exception. If I were to venture a guess as to the sentence, I'd anticipate a sentence in the 10-12 year range.
Posted by: atomicfrog | May 18, 2022 12:25:53 PM
AFPD - I have often wondered about the 5 level increase for pattern of activity as well, since the threshold for it's application is preponderance and it does not require a formal conviction or even arrest for that matter. I know there is considerable case law supporting its application, but that is a huge bump for conduct that may or may not have happened (preponderance being 51-49) in the past and conduct for which the defendant could have committed when he was a juvenile - as are the alleged facts in this case.
Posted by: atomicfrog | May 18, 2022 12:30:33 PM
192 months.
Posted by: Scott | May 18, 2022 3:06:29 PM
As many defense lawyers, commentators and even U.S. District Judges have noted, the Federal child porn sentencing Guidelines are extraordinarily harsh. In most states, a defendant could kill 2 people and get a shorter sentence than if he possessed 200 images of child porn. One 75 year old defense lawyer friend (who earlier in his career was an AUSA in the E.D. of Ky.) here will not take these kinds of cases any longer because he cannot bear to tell highly educated (one defendant was a research veterinarian at a major university), middle aged men, with little or no prior criminal history that they were likely to spend most (if not all) of the rest of their lives in Federal prison. We have had some success in finding grounds for seeking downward departures at sentencing pursuant to Section 5K2.13 (Diminished Capacity), supported by psychiatric opinions. This gives a sympathetic Judge a peg to hang his hat on if he wants to give a shorter sentence. Using 5K2.13, we have typically gotten Judges to shave 1/3 off the otherwise indicated Guidelines sentence. In this case, it is troubling that Duggar might get a longer sentence for things he supposedly did as a juvenile, for which he was never changed or convicted. The U.S. Sentencing Commission needs to revisit the child porn Guidelines.
Posted by: Jim Gormley | May 18, 2022 3:10:32 PM
Here in Central Kentucky, a child porn defendant was acquitted on 17 counts by a jury in state (Circuit) Court last week. The defendant as former school principal. He was originally arrested over 30 images, but was later indicted by a Grand Jury on only 17 images. The prosecution was never able to identify any of the young people in the pics. They even ran the facial images thru the national database of child porn and exploited children, without getting a single hit. Thus, the prosecution was limited to using the expert testimony from the Kentucky State Police that the persons depicted in the pics were younger than 18 years of age (although he had to admit that he couldn't be certain of their ages). Although the 17 pics were shown to the expert witness on the stand and discussed in testimony, the prosecutor failed to move to have the pics admitted into evidence, and rested his case. The defense had 3 proposed witnesses, 2 experts to counter the KSP expert, and the defendant himself. He would have testified that the website from which he downloaded the pics all have statements that the persons depicted in pics and videos on the website are 18 or older, which he relied upon. But without the pics in evidence, defense counsel called none of his witnesses and rested his case. The jury rewarded him with a defense verdict on all 17 counts in the indictment.
Posted by: Jim Gormley | May 18, 2022 3:21:11 PM
Jim Gormley - you make some good points and the USSC recently published two new reports -
https://www.ussc.gov/research/research-reports/federal-sentencing-child-pornography-production-offenses
https://www.ussc.gov/research/research-reports/federal-sentencing-child-pornography-non-production-offenses
The non-production report does an excellent job focusing on three things - the content of the offender’s child pornography collection and nature of the offender’s collecting behavior; the offender’s degree of involvement with other offenders, particularly in an internet community devoted to child pornography and child sexual exploitation; and the offender’s engagement in sexually abusive or exploitative conduct in addition to the child pornography offense.
The report also notes - Constrained by statutory mandatory minimum penalties, congressional directives, and direct guideline amendments by Congress in the PROTECT Act of 2003, §2G2.2 contains a series of enhancements that have not kept pace with technological advancements. Four of the six enhancements— accounting for a combined 13 offense levels—cover conduct that has become so ubiquitous that they now apply in the vast majority of cases sentenced under §2G2.2.
Posted by: atomicfrog | May 18, 2022 3:57:58 PM
@Soronel Haetir: You say the statutory maximum is a 33% discount to the guideline. I submit that's the wrong way of looking at it. The guideline is supposed to "guide" a sentence allowed by law. The extra 10 years not allowed by law are irrelevant. You are not getting a "discount" if the extra years could not be legally imposed.
Congress decided that a maximum of 20 years was the proper sentence for "the worst of the worst". If you sentence this guy to 20 years, it amounts to saying, "This just about the worst CP receipt offense that I could imagine." Personally, it does not appear to me that this is anywhere near the worst I have heard of, but I think the odds are on the government's side here.
Perhaps someone could explain why the guidelines are designed to sometimes recommend a sentence above the statutory maximum. Had I designed the system, I would have "scaled" each guideline so that it could never recommend more than the law allowed.
Posted by: Marc Shepherd | May 18, 2022 4:03:00 PM
@Marc: Does that logic mean that Congress decided that a five-year sentence (the mandatory minimum) is only appropriate for the "least of the least" offenders? Conceptually, I think it would -- Congress decided that no matter how mitigating the circumstances and how less serious the offense (e.g., 17 yo victim, single image deleted after a few days, no extreme conduct depicted, guilty plea, significant personal mitigation), that offender deserves five years. If the distance between Duggar & the "worst of the worst" means he should get significantly less than 20, then it follows that the mine-run offender should get significantly more than five.
As to your question about the guidelines, I think they have a mathematical problem when multiple enhancements are stacked. A 2-point increase is conceptually about a 25% uplift from the base offense level. But adding another 2-point increase creates a somewhat higher percentage uplift for the second increase, and even higher for the third. Arguably, the guidelines should say "add 25% to the guidelines term of incarceration for the base offense" rather than "+2 levels" to avoid this interaction effect.
The CP guideline is messed up anyway due to Congressional directives creating a number of enhancements that are almost always present. So if you have a starting point that makes sense based on the mandatory minimum, but then tack on a bunch of increases that are present in almost all cases, you'll get closer to the stat max -- and over it if you add in some less common but hardly rare increases.
Posted by: Jason | May 18, 2022 8:26:58 PM
I think the heavy anchor here is the "Pattern of Activity" as reflected by the enhancement. Gov can point to that and has. I think that is going to be a strong factor in his sentencing at the upper range. Yes, his defense makes strong and meritorious arguments. It shall be interesting to see.
Posted by: Of Interest | May 24, 2022 2:22:58 PM
