On May 19, 2010, the Attorney General of the United States issued a memorandum to all federal prosecutors entitled: "Department Policy on Charging and Sentencing." (http://sentencing.typepad.com/files/holder-charging-memo.pdf)
It provides in part:
Consistent with the statute and with the advisory sentencing guidelines as the touchstone, prosecutors should seek sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford deterrence, protect the public, and offer defendants an opportunity for effective rehabilitation. In the typical case, the appropriate balance among these purposes will continue to be reflected by the applicable guidelines range, and prosecutors should generally continue to advocate for a sentence within that range. The advisory guidelines remain important in furthering the goal of national uniformity throughout the federal system. But consistent with the Principles of Federal Prosecution and given the advisory nature of the guidelines, advocacy at sentencing -- like charging decisions and plea agreements -- must also follow from an individualized assessment of the facts and circumstances of each particular case. All prosecutorial requests for departures or variances -- upward or downward -- must be based upon specific and articulable factors, and require supervisory approval.
There are no substantive changes from the status quo. It's the same old system, wrapped in a sweeter package. The most serious readily provable offense is to be charged, regardless of the insanity that is our federal drug crime scheme. Thus, 5-10 years incarceration or more for first offenders is still to be the norm. The Holder also memo makes no mention of increased use of FRCrP Rule 11(c)(1)(c) plea agreements, which would provide an agreed-to sentence to the court, and not leave it to the whims of the judge. A policy increasing the use of 18 USC 3553(e) motions to allow for sentences below the mandatory minimum is not included. Also not addressed is when 851 enhancements are specifically to be filed- another lost opportunity.
Overall, the memo adds nothing new and nothing will probably change in the policies of the offices of the United States Attorneys across the United States. This is neither bold nor warranted.
