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February 2, 2005

DOJ's post-Booker memo to line prosecutors

I noted in this post yesterday that I had heard that Main Justice had sent a memorandum to all federal prosecutors setting out DOJ's policies and procedures in the wake of Booker.  Today in the Wall Street Journal, Laurie Cohen has this thoughtful article (subscription required) discussing the January 28 memorandum from Deputy Attorney General James Comey to all federal prosecutors entitled "Department Policies and Procedures Concerning Sentencing."  Since the WSJ is now the paper of record, I can follow-up by providing the full memo for downloading below.

This Jan. 28 Comey memo is a short but interesting read for a number of reasons.  It asserts that federal prosecutors "must actively seek sentences within the range established by the Sentencing Guidelines in all but extraordinary cases" and explains that the Solicitor General will ensure DOJ "takes consistent and judicious positions in pursuing sentencing appeals."  Also, as stressed in the WSJ article, the memo notes that the Executive Office of US Attorneys is "distributing instructions for reporting (1) sentences outside the appropriate Sentencing Guideline range, and (2) cases in which the district court failed to calculate a Guideline range before imposing an unreasonable sentence."

I would be interested in reader comments on all aspects of this memo.  In my view, the substance is neither surprising nor all that provocative, but the tone is fascinating.  In particular, I am intrigued by the "keep your chin up" theme: DAG Comey at the outset commends prosecutors "for your flexibility, your creativity and your good humor in these difficult times" and in closing lauds prosecutors' hard work and says that their "ability and dedication will get the job done in these challenging times."

Download dag_jan_28_comey_memo_on_booker.pdf

February 2, 2005 at 11:39 AM | Permalink


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My thoughts:
(1) It's not surprising to me that the standing orders are "follow the guidelines." It's an easy message to send out.
(2) I am surprised that there are no directions about requesting sentences above the advisory guideline range. I'm sure that some prosecutors would want to do so in a number of cases (if nothing else to give a "high bid" to contrast the defendant's "low bid" such that the Court could feel as if it compromised by sentencing within the Guidelines).
(3) I'm relieved that it appears the USA will only appeal sentences if they're below the Guidelines range AND there are other factors that would make the individual sentence "unreasonable." At least they're recognizing that a number of judges will sentence below the range and that at least in a number of cases, the sentence would not be "unreasonable" such that the decision would warrant an appeal. That'll help out the Courts of Appeals (by not overcrowding dockets) and district courts (by giving them at least reasonable leeway to "depart" without the constant threat of appeal).

Posted by: District Clerk Battling Booker | Feb 2, 2005 12:03:51 PM

If you characterize the "tone" of the memo correctly, it seems remarkable in at least one way. The tendency of the DOJ to assume that judges are the enemy and must be "reported" for their bad actions is both inappropriate and ultimately self-defeating. Federal judges are, without exception, trying to apply the law to the best of their ability, and encouraging young prosecutors to envision them as members of an enemy camp is quite wrongheaded. In addition, taking such an attitude is likely to cause a reaction from the judicial branch that will not get the government what it wants.

The "keep your chin up" tone is in response to the feeling among line prosecutors that their world has ended. The thought that they should have to argue for the sentences they want by applying basic principles of penology, rather than by arcane and often irrelevant point-counting, seems to have caused a real morale drop. Why this should be so, I don't know, since one thinks that, if there were merit in their positions, the outcome should be similar either way. But perhaps they have genuine self-doubt about the weight of their arguments.

Posted by: David in NY | Feb 2, 2005 12:20:32 PM

I guess the DOJ will never learn. Their Feeney Bill perpetuated this whole mess, if the truth be known. Now further keeping score of Federal judges can only enrage the judicial branch that much more. The "hold your chin up" rhetoric has more to do with the AUSA's losing the "rat" factor. Why should Tyrone rat his homeboys, when it won't help in his case. The Feds are pissed not because of self doubt about the weight of their arguments, but because with the guidelines now gone, the draconian sentences are now gone, as is downward departure for substantial assistance. So why should Tyrone help the Feds, when that assistance won't help Tyrone. With the 3553(a) aspects of Tyrones life now relevant, growing up in a horrible environment, being addicted to drugs will help his cause immensely, so why assist the Feds, when they will only throw him to the wolves when finished with him. If I were a AUSA or federal agent, I would be extremely depressed, since their incredible power to expand investigations and go after the huge fish is now gone. With this all said, I do feel that congress will step in to change the playing field again, in favor of the Justice Department. Congress knows you will never catch the really bad guys, when a first line somewhat bad guy like Tyrone tells Mr. FBI man to go pound sand.

Posted by: Bruce | Feb 2, 2005 1:35:18 PM

I'm not sure I agree that 5K downward departure motions are gone. Courts still must determine the proper guideline range as part of the sentencing inquiry. A 5k motion would lower that range it seems to me. Then the court would applie the other 3553 factors against this new, lower, range to determine sentencing. The incentive to cooperate might be less but it's certainly not gone as far as I can see.

Posted by: bkolstad | Feb 2, 2005 1:52:51 PM

...and a judge would certainly take into consideration the defendant's cooperation in going after other bigger fish. In fact, it might encourage defendants to cooperate because under the Guidelines, they'd only get a 5K1 departure if the government thought their assistance was substantial and filed a motion. Here, judges can take evidence of a defendant's ATTEMPTS to cooperate, even if it does not amount to "substantial assistance," and give smaller breaks.
Plus, much of the bargaining will simply go on pre-indictment. Rather than giving sentence reductions, AUSAs can (if they're allowed to by main justice) just not bring charges against defendants who cooperate. It's much more of a break for defendants (and one that will probably be used less) but it's still a chip.

Posted by: District Clerk Battling Booker | Feb 2, 2005 2:07:04 PM

One might also note the contradiction between the second and third sentences in the last paragraph on the first page discussing the impact of the Guidelines. The second sentences refers to an “unwarranted disparity among similarly situated defendants.” The third sentence then lauds the Guidelines as helping “to ensure consistent, fair, determinate and proportional punishment.” Contrary to the implication created by the juxtaposition of the two sentences, the Guidelines addressed only similar conduct, not similarly situated defendants! Indeed, because the Guidelines are impersonal they do not take into account at all the fact that while it is criminal conduct that is being punished, punishment is being imposed on individuals. The Guidelines specifically prohibit taking into consideration most, if not all, “individual” characteristics. To be sure the Guidelines helped ensure consistent, determinate and proportional punishment for similar conduct, but whether it was fair is open to debate. What is fair, like justice, is a somewhat nebulous concept that is dependent upon not only the circumstances but one’s own personal perspective. What is considered a “fair” punishment for a given criminal act will differ between the victim and the victim’s family on one side and the defendant and the defendant’s family on the other.
All Booker did was restore 3553(a)(1), (2), (3), (5) and (6) to the sentencing decision! In short, in imposing a sentence, the court is no longer in the straight jacket that restricted consideration to 3553(a)(4) and (5). Under Booker the Guidelines, while still relevant and perhaps a “starting point,” are no longer etched in stone, sacred and inviolate. The point DOJ misses is that sentencing is a judicial, not a prosecutorial, function. The prosecutorial function is to present the evidence and argue that under the law a certain result should be reached. It is the function of the judiciary to weigh that evidence, apply it to extant law, and render a decision consistent therewith. If the purpose of the DOJ “Booker Sentencing Report Form” were to permit DOJ to refine and bolster its arguments vis-a-vis the appropriate sentence to be imposed or to make an informed decision on whether to appeal, it would be a perfectly legitimate tool. [Unlikely inasmuch as that purpose is already covered by USAM 9-2.170(B).] On the other hand, if intended to coerce or intimidate judges into accepting the prosecutorial position, it is not only inappropriate and unprofessional, but also an attempt to usurp the judicial function by the executive branch. If a district court misapplied the law or abused its discretion in imposing a sentence, the appropriate course is to appeal it. [Please note that the fact that the prosecutor or the powers-that-be at DOJ would have exercised that discretion differently if it were theirs to exercise is irrelevant. The issue is whether the sentencing court abused its discretion.] It is inappropriate, however, to attempt to directly or indirectly intimidate or coerce a district court into exercising its discretion in a particular manner.

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