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May 26, 2010

Attorney General Holder issues new DOJ policy guidance on charging and sentencing practices

Thanks to a helpful reader, I just received a copy of what appears to be an important new memorandum from Attorney General Holder to all federal prosecutors concerning "Department Policy on Charging and Sentencing."  This new three-page "Holder memo" (which can be downloaded below) expressly states at the end that it replaces older "Ashcroft" and "Comey" memos concerning how federal prosecutors are supposed to make basic charging, plea bargaining and sentencing decisions.

Distilled to its essence, it seems that instead of a general policy that federal prosecutors "must" charge and pursue the most serious offense and must advocate a within-guideline sentence, this new Holder memo now asserts that federal prosecutors "ordinarily should" charge and pursue the most serious offense and "should generally" continue to advocate a within-guideline sentence.

In other words, in appears that this new Holder memo is a fairly subtle change in policy, but that subtle change may still prove to be very consequential in practice.  Indeed, I would be grateful to hear in the comments from federal sentencing practitioners whether they think this new Holder memo is just a very small change or a really big deal.

Download Holder charging memo  

May 26, 2010 at 05:18 PM | Permalink


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In my opinion, I don't believe that this memo would have any real effect or change in what is going on today. Just because it say's "ordinarily should" and "should generally", it would still be the same to every federal prosecutors eyes, that you have to prosecute mostly every single case, and give within-guideline sentences.

So to conclude, I don't think this would change anything significantly.

Posted by: N/A | May 26, 2010 5:31:46 PM


Posted by: benson weintraub | May 26, 2010 6:24:02 PM

It will depend upon the district. What the policy really does is provide greater leeway to individual USAOs to set charging and sentencing policy. Some will undoubtedly use that greater discretion more extensively than others. It will all depend on the views of the various US Attorneys and supervisory AUSAs in each office.

Posted by: DM | May 26, 2010 7:41:35 PM

DM is right. All of you Booker-lovers should be happy -- more inconsistancy, racial and regional disparity, and general sentencing chaos.

Posted by: Ferris Bueller | May 26, 2010 7:52:45 PM

Ferris Bueller: Correct. Booker lovers. NOT Apprendi and Blakely lovers. It was the dissenters from those cases that caused the chaos in Booker.

Posted by: anon | May 26, 2010 10:30:53 PM

Eh. It was never true that prosecutors sought the most serious charges in evey (or even most) cases. It would be chaos if that happened. You'd have a lot more trials, and that's to no one's benefit. Moreover, given how easy it is for prosecutors to manipulate the defendant's Guideline range, I doubt they'll be arguing for below-Guideline sentences in many cases. Why argue for a below Guideline sentence when you can just make the Guideline range shorter? In short, there will likely be no change at all.

Posted by: FPD | May 27, 2010 12:10:54 AM

One thing that I think it does is give junior prosecutors close to the facts who think mercy is appropriate more room to suggest leniency without a supervisory attorney simply saying "must means must" and insisting on a tougher stance.

There is some evidence that this kind of thing was happening in the cases, where a judge noted that the Assistant U.S. Attorney originally didn't think that a mandatory minimum sentence was necessary in a case, and then came back with a supervisor in tow taking a harder line. (Can't recall the specific case), must to the judge's consternation.

Posted by: ohwilleke | Jun 1, 2010 4:40:25 PM

White collar defendants already face some of the toughest sentences out there. Look at this blog post below for an analysis of their sentences. And they want it tougher!


Posted by: Randy | Jun 3, 2010 5:26:18 PM

If someone was arrested in april, charged with possession with intent to distribute crack, then the fed took the case in june and charged him with possession, intent to distribute cocainebase known as crack, after the feds tested the drug it came back as nagative on crack but positive on cocaine, the amount 120grams. Now he is being charged with conspiracy and intent to possess and distribute crack even though it is cocaine. Is this possible? His new indictement came on august 3rd after congress passed the new law on crack, if convicted, would he fall under the old or new law? Is it possible to charge someone for a crime they say he is going to commit? Can they add more charges to what he is initially charged with? After reindictment can they almost a month later add another charge unrelated to the previous charges? please respond.

Posted by: Sanny | Aug 27, 2010 8:48:29 PM

Wirklich danke, ich finde so eine gute Seite, ich muss es aufschreiben, um meinen Freunden empfehlen

Posted by: pandora perlen | Nov 4, 2010 11:09:04 PM

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