On May 19, 2010, Attorney General Eric J. Holder, Jr. issued a memorandum addressing "Department Policy on Charging and Sentencing." The memorandum recognizes the advisory nature of the United States Sentencing Guidelines ("Guidelines"), emphasizes that charging and sentencing decisions must be made individually "on the merits of each case" rather than beginning and ending with the Guidelines, and extends to individual prosecutors greater discretion to make charging and sentencing decisions.
The Holder memorandum supersedes the prior DOJ position that prosecutors "charge and pursue the most serious readily provable offenses," i.e., the charges that would generate the most substantial sentence, in all cases. The prior policy also required Department prosecutors oppose any sentence below the Guidelines range.
Under the new guidance, charging, plea bargaining, and sentencing decisions “must also follow from an individualized assessment of the facts and circumstances of each particular case," and are not necessarily tethered to the Guidelines. As a result of this new approach, Department prosecutors should be more open to defense advocacy in seeking charge avoidance or reduced sentences in appropriate cases.
A more detailed description of this recent guidance may be found on the Fox Rothschild website.
(With appreciation to Eric E. Reed, Esq., for contributing this entry)