New Federal Charging and Sentencing Guidance from U.S. Attorney General

United States Attorney General Eric H. Holder, Jr. recently issued a Memorandum to all federal prosecutors (the “Holder Memorandum”) addressing the Department of Justice’s policy on charging and sentencing federal crimes.  This memorandum is very significant, as it supercedes several previous memoranda issued by the Bush Administration concerning how the Department of Justice will proceed with respect to charging decisions and advocacy during federal sentencing.

I discussed here that federal sentencing is very different than Mississippi state court sentencing, and sometimes it is the biggest battle of your federal case.  So it is important to keep up with DOJ policy and how they are thinking as we develop a plan for your case.

Most practitioners believe that this new Memo softens what were earlier “hard lines.”  It basically shifts DOJ policy from strict compliance and uniformity to an understanding that no two cases and no two people are alike.  It appears to give prosecutors more discretion than before, saying things such as prosecutors should continue to “ordinarily charge the most serious offense that is consistent with the defendant’s conduct and that is likely to result in a sustainable conviction,”  and “[c]harges should not be filed simply to exert leverage to induce a plea…”

Further, the memo says that all charging decisions must be reviewed by a supervisory attorney, and all but the most routine indictments should be accompanied by a document that sets out charging options and explains the charging decision.

It is my opinion that these are positive developments in DOJ policy.  The key words in the memo are “individualized assessment,” which recognize the fairly recent change making the application of the federal sentencing guidelines advisory, rather than mandatory, on federal judges.

You can read the entire Memorandum here: 100519 Holder Memo.