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December 12, 2006

Nuanced federal discretion ... for prosecutors

As detailed here and here throughout the blogosphere, U.S. Deputy Attorney General Paul McNulty has announced that the Justice Department has revised its corporate charging guidelines for federal prosecutors.  The new "McNulty memo" can be accessed here, and I have already received this informed reaction from a reader:

When I got to the passage at the top of page 5, I couldn't help but be reminded of Section 3553(a). In deciding whether to prosecute a corporation, the AUSA must "consider[]" a list of 9 factors.  "Some or all of these factors may or may not apply to specific cases, and in some cases one factor may override all others." "In most cases, however, no single factor will be dispositive."  Policies in certain enforcement areas "may require that more or less weight be given to certain of these factors than to others." The need for a case-specific determination, without any factor carrying "presumptive weight," is driven home in the next sentence: "Of course, prosecutors must exercise their judgment in applying and balancing these factors and this process does not mandate a particular result." (Emphasis added). The next paragraph reminds the prosecutor to ensure that the "general purposes of the criminal law . . . are adequately met[.]"

Imagine what an improvement it would be if only the sentencing statute operated in this manner.  Oh, wait.  I think that is the way the sentencing statute reads.  Too bad DOJ does not trust sentencing judges to engage in the same sort of process it has devised for its own attorneys at the charging stage. (And AUSA's charging decisions aren't even reviewed for reasonableness.)

December 12, 2006 at 04:26 PM | Permalink


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Paul McNulty's judgement in federal prosecutions for corporations? Wellll, isn't that special.

Posted by: Federal McNulty | Apr 12, 2008 11:18:44 PM

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