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May 29, 2010

Notable reactions from notable officials to the new Holder memo for federal prosecutors

This new post at The BLT, which is headlined "Holder Memo Calls for Flexibility in Charging, Sentencing," reports on the new memorandum from Attorney General Holder to all federal prosecutors concerning "Department Policy on Charging and Sentencing" which replaces older "Ashcroft" and "Comey" memos concerning how federal prosecutors are supposed to make basic charging, plea bargaining and sentencing decisions (basics here).  In addition to describing the memo (and the testimony from DOJ earlier this week at the Sentencing Commission's public hearing (basics here)), this post has these notable quotes from in-the-know folks about the memo's import:

Sentencing Commission Vice Chairman William Carr Jr. said the Holder memo “clearly” gives more flexibility to assistant U.S. attorneys.  In particular, Carr, a former federal prosecutor in Pennsylvania who retired in 2004, said the new guidance suggests there will be more flexibility to not argue for mandatory-minimum sentences....

Senate Judiciary Chairman Patrick Leahy (D-Vt.) released this statement Thursday afternoon on the Holder memo: “With this new policy, Attorney General Holder has taken a further step toward restoring the Justice Department’s commitment to enforcing the law aggressively, effectively, and fairly.  I applaud Attorney General Holder for his forward-thinking and common-sense update to the Justice Department’s policies on charging criminal cases, making plea deals, and seeking sentences.  This is a marked change in the policies implemented by the Bush Justice Department.  By emphasizing both the importance of consistency and the need to carefully consider the specific facts and circumstances of each case, Attorney General Holder ensures that the Department will strive to reach the most fair and appropriate result in each case.  His new policy gives prosecutors the flexibility they need to secure important plea deals and charge cases in the way best calculated to obtain convictions.”

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May 29, 2010 at 08:23 AM | Permalink


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One problem with the new Holder Memo is that it is going to be employed by a generation of AUSA's (and AUSA supervisors) who have come of age and have grown into their jobs under the Thornburg/Ashcroft policies, as well as the guidelines when they were mandatory, and who thus have no experience in making individualized prosecution decisions outside the context of charging decisions focused on the harshest possible sentencing consequences, whether they made any objective sense or not. I always thought that what made being an AUSA an incredible job was the responsibility we had of making wise, thoughtful, and compassionate charging decisions that vindicated the interests of victims, but likewise carefully considered and accounted for the individual particulars of the offenders. The biggest negative impact of Thornburg/Ashcroft was that they fostered an entire generation of prosecutors who never had ocassion to make such balanced judgments, because they were in essence required not to. At the end of the day, i think the Holder memo is on the right track, but way too little too late. I doubt it will have much impact.

Posted by: Grotius | May 29, 2010 5:22:56 PM

I see that several articles say that DoJ will not be required to advocate mandatory minimum sentences. I do not see that in the memo. Please let me know what I've missed.


Posted by: Mark Pickrell | Jun 1, 2010 9:46:29 AM

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