Holder Memo on DOJ Policy on Charging and Sentencing

AG Holder issued a memo on charging and sentencing dated May 19, 2010. The memo is here. The memo is full of glittering generalities about the need for fair sentencing based on a defendant's individual circumstances. Holder proclaims:

Indeed, equal justice depends on individualized justice, and smart law enforcement demands it. Accordingly, decisions regarding charging, plea agreements, and advocacy at sentencing must be made on the merits of each case, taking into account an individualized assessment of the defendant's conduct and criminal history and the circumstances relating to commission of the offense (including the impact of the crime on victims), the needs of the communities we serve, and federal resources and priorities.

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Consistent with the statute and with the advisory sentencing guidelines as the touchstone, prosecutors should seek sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford deterrence, protect the public, and offer defendants an opportunity for effective rehabilitation. In the typical case, the appropriate balance among these purposes will continue to be reflected by the applicable guidelines range, and prosecutors should generally continue to advocate for a sentence within that range. The advisory guidelines remain important in furthering the goal of national uniformity throughout the federal system. But consistent with the Principles of Federal Prosecution and given the advisory nature of the guidelines, advocacy at sentencing -- like charging decisions and plea agreements -- must also follow from an individualized assessment of the facts and circumstances of each particular case. All prosecutorial requests for departures or variances -- upward or downward -- must be based upon specific and articulable factors, and require supervisory approval.

In an article on the memo, Law.com quotes that ND GA U.S. Attorney's presentation at a Sentencing Commission hearing as saying that, despite Booker and its progeny, federal prosecutors had, prior to the memo, all too often been "the only ones in the courtroom who were still acting like the guidelines were mandatory." Further:

That harmed the department's ability to influence sentencing decisions. Prosecutors, Yates said, "ended up out of the conversation" because they would argue, somewhat robotically, that the government is recommending a guideline sentence. The conversation would then proceed between the judge and the defense attorney. "We need to be part of that conversation," Yates said.

Still, the Justice Department will continue to advocate for guideline sentences "because in the majority of cases we believe that is the fair and appropriate sentence," Yates said. But the Department, she insisted, must also adapt.

Time will tell what all of this means in the real world.  But it may mean that prosecutors relax a little, although I suspect that most sentencing courts were already there, at least in tax cases.

Discussions of the memo may be found at:

Sentencing Law and Policy Blog

Law.com 

WSJ Law Blog