87790287.jpgOn May 19, 2010, Attorney General Eric Holder issued an important memorandum to all federal prosecutors regarding DOJ’s policy on charging and sentencing decisions.  The “Holder Memo” (pdf) expressly supersedes the “Ashcroft Memo” (pdf) issued by former Attorney General John Ashcroft on September 22, 2003, as well as two subsequent memoranda issued by former Deputy Attorney General James Comey regarding sentencing policy.  The Holder Memo, which scales back the mandatory language of the Ashcroft Memo with respect to charging decisions and plea agreements, was made public recently when it was provided to the United States Sentencing Commission.

Charging Decisions.  The Ashcroft Memo required federal prosecutors to charge and pursue the most serious, readily provable offenses supported by the facts of a case, and stated that lesser offenses should only be charged in rare circumstances when necessary to obtain substantial assistance in an important investigation or prosecution.  In contrast, the Holder Memo states that a federal prosecutor should ordinarily charge the most serious offense that is consistent with the nature of the defendant’s conduct and likely to result in a sustainable conviction.  The Holder Memo further requires an individualized assessment to ensure that the charges fit the specific circumstances of the case, are consistent with the purpose of the federal criminal laws, and maximize the impact of federal resources.  Charging decisions must also give “due consideration” to substantial assistance provided by a defendant.

Plea Agreements.  The Holder Memo also alters DOJ’s policy with respect to plea agreements.  Like the Ashcroft Memo, the Holder Memo provides that the dismissal of a charge pursuant to a plea agreement is governed by the same principles as the charging decision.  Under the Holder Memo, prosecutors must seek pleas “informed by an individualized assessment of the specific facts and circumstances of each particular case.”  Thus, the Holder Memo creates a more permissive standard for the dismissal of charges pursuant to a plea agreement.

Sentencing Advocacy.  The Attorney General’s general theme of “individualized assessment” continues with respect to sentencing advocacy.  The Ashcroft Memo stated that acquiescence by prosecutors to departures from the Sentencing Guidelines should be a rare occurrence except where the defendant provided substantial assistance or participated in a fast track program.  The Holder Memo provides only that prosecutors should generally advocate for a Guidelines sentence.  Like charging decisions and plea agreements, sentencing advocacy should be based on an individualized assessment of the facts and circumstances of each case.  Indeed, the Holder Memo expressly contemplates prosecutorial requests for departures or variances by requiring such requests to be based upon specific and articulable factors. 

The Holder Memo clearly signals a different approach to charging decisions, dismissal of charges in plea agreements, and advocacy at sentencing that vests more discretion in federal prosecutors.  For individuals and corporate entities under investigation by DOJ, this new era of flexibility should be welcomed because it creates more opportunities to advocate for lesser offenses and sentences.