Attorney General Eric Holder issued a Department Policy on Charging and Sentencing on May 19, 2010. The new policy modifies and supersedes three prior DOJ memos on charging and/or sentencing, one from then AG Ashcroft (issued 9-22-03) and two from then Deputy AG Comey (7-2-04 and 1-28-05). The May 19 memo calls for prosecutors to consider “the merits of each case” when making decisions regarding charging, plea agreements, and sentencing advocacy, “taking into account an individualized assessment of the defendant’s conduct and criminal history and the circumstances related to the commission of the offense (including the impact of the crime on victims), the needs of the communities we serve, and federal resources and priorities.” Here is a copy of the memo, via Ellen Podgor’s White Collar Crime Prof Blog. The memo clearly gives prosecutors greater leeway to consider the individual circumstances and characteristics of particular defendants and targets, within an overall framework of treating those who commit similar crimes, with similar culpable mental states, similarly. Professor Podgor’s detailed analysis is here. Main Justice’s take is here, in a story by Ryan J. Reilly.
Notably, pursuant to the memo, “[c]harges should not be filed simply to exert leverage to induce a plea.”
I also note that certain U.S. Attorney Offices and units within DOJ have developed policies in the post-Booker era requiring defendants entering into plea agreements to forego arguing for Booker-Gall-Kimbrough downward variances. It would seem that the May 19 memo implicitly prohibits any such unvarying policy by a DOJ unit or OUSA. If each individual defendant and case must be examined on a particularized basis, then no DOJ prosecutor should ever tell a defense attorney that ”our policy” prohibits plea agreements that leave defendants free to argue for a downward variance.
Not a sermon. Just an obsession.
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