Legal Commentary

Holder Supercedes Ashcroft Sentencing Directive

By Jeralyn

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.

Full post as published by TalkLeft on May 26, 2010 (boomark / email).