Holder Supersedes Ashcroft Sentencing Directive

Via Sentencing Law and Policy, Attorney General Eric Holder has issued a new directive to prosecutors on federal sentencing. You can read it here.

Ashcroft's sentencing memo, "Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencings" directed prosecutors to charge the most serious provable offense. I posted it here back in 2003. Former Deputy AG James Comey's January 28, 2005 sentencing directive is here. Professor Berman says of today's Holder memo:

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.

I think the memo is a welcome change. [More....]

It says that while in the ordinary case, a guideline sentence will be appropriate and should be argued for, in all cases prosecutors should make an "individualized assessments of the facts and circumstances of each particular case." It also allows prosecutor to consider whether a substantial federal interest will be served by a federal prosecution, whether the person is subject to effective prosecution elsewhere (like in state court) and whether adequate alternatives to criminal prosecution exist.

There's a lot of room for greater individualized treatment of defendants with respect to charging, plea agreements and sentencing recommendations in Holder's memo. But it's up to prosecutors' offices to avail themselves of it. It would be nice if Congress would hurry up and confirm Obama's U.S. Attorney nominees. I suspect the offices led by Bush hold-overs will be less apt to embrace it.

That said, credit is due to AG Eric Holder both for officially acknowledging what the Supreme Court has been saying since 2005, and for accepting it as departmental policy.

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    ok, clear something up please: (none / 0) (#1)
    by cpinva on Wed May 26, 2010 at 10:16:16 PM EST
    charge the most serious provable offense.


    charge and pursue the most serious offense

    do not appear (to me) to be mutually inclusive, with the second quote allowing far more descretionary latitude than the first.

    am i missing something here, or was this simply a mis-statement?

    That's not the focus of the change. (5.00 / 1) (#2)
    by Peter G on Wed May 26, 2010 at 11:08:07 PM EST
    The exact words of the old policy are "most serious readily provable offense."  Both phrases you quote, cp, are intended to refer to that standard.  The change in policy is that under the Bush-Ashcroft policy, Washington dictated that federal prosecutors must charge that "most serious" offense (even if it would be excessive and unjust on the particular facts of the case).  Under the new Obama-Holder policy, prosecutors are advised generally to charge the most serious readily provable offense, but have discretion to charge a lesser offense (such as one that does not carry a mandatory minimum prison term) if the particular defendant's degree of involvement or other circumstances don't warrant that level of severity or harshness.

    Are there any statistics (none / 0) (#3)
    by jbindc on Thu May 27, 2010 at 07:14:23 AM EST
    Of how many prosecutors followed the Ashcroft policy all the time?  My question stems from this comment:

    But it's up to prosecutors' offices to avail themselves of it.

    Does anyone know if all USAO availed themselves of the Ashcroft memo or were some still doing what seems to be the essence of the Holder memo?

    I hope TL will clarify what she meant (5.00 / 1) (#4)
    by Peter G on Thu May 27, 2010 at 11:34:40 AM EST
    by "But it's up to prosecutors' offices to avail themselves of it."  To my understanding, these memos state official national policy and are intended to be mandatory on U.S. Attorneys' offices nationally.  I do not think the U.S. Attorney in a given district has authority to reject it.  However, they are policy documents, not law.  So the remedy for a defendant who believes the policy is not being followed is not to file a motion in court (assuming no unlawful invidious discrimination, of course), but only to complain "up the chain of command" within an office.  If in the end the U.S. Attorney does not agree that application of a mandatory minimum, for example, would be disproportionate to the defendant's culpability, I doubt there's anything the individual can do about it.

    Thanks (none / 0) (#5)
    by jbindc on Thu May 27, 2010 at 12:32:07 PM EST
    That's what I thought.  And even if "the policy wasn't being followed", it didn't mean that the USA was making up charges - just not being lenient and charging lower offenses.  I don't see how that would be appealable at all. I guess a USA could get a hand slap from the AG in that case.

    But I just wonder how many USAO's followed that policy all the time, or did what most prosecutors do all the time - tried to strike bargains and bring cases to trial that they thought they could actually prove? Seems like even if a prosecutor thinks they have a provable case, doesn't mean it is (or that a jury sees it that way), so it seems like there's a greater risk for a lower conviction rate, which does not look good when it comes time for employee evaluations.


    I was talking about (none / 0) (#6)
    by Jeralyn on Fri May 28, 2010 at 02:23:50 AM EST
    Holder's new policy, not Ashcroft's.  Ashcroft's was a directive, charge the most serious crime, it was very clear, mandatory and it was followed.

    Holder's policy offers discretion. Prosecutors have the authority now, in their discretion,  to support a non-guideline sentence and to charge less than  the most serious, provable crime. All they need is approval from a higher up. Will they use that discretion or ignore it and continue to seek guideline sentences and charge the most serious provable offense? That remains to be seen.