Holder Issues New Charging, Sentencing Guidelines
By Ryan J. Reilly | May 27, 2010 3:59 pm

Attorney General Eric Holder has issued new guidelines to give prosecutors more flexibility in decisions about charges and recommending sentences in criminal cases.

The May 19 memo, released publicly today, says that prosecutors ordinarily should charge the most serious offense. It also says prosecutors should generally advocate sentences within advisory federal sentencing guidelines. It replaced previous memos from then-Attorney General John Ashcroft and then-Deputy Attorney General James Comey, which required prosecutors to charge the most serious offenses and follow the sentencing guidelines.

“Persons who commit similar crimes and have similar culpability should, to the extent possible, be treated similarly,” Holder wrote. “Accordingly, decisions regarding charging, plea agreements, and advocacy at sentencing must be made on the merits of each case. …Prosecutors must always be mindful of our duty to ensure that these decisions are made without unwarranted consideration of such factors as race, gender, ethnicity, or sexual orientation.”

The Justice Department submitted the memo to the U.S. Sentencing Commission ahead of the commission’s hearing Thursday on sentencing guidelines.

In 2005, the Supreme Court ruled in the Booker case that federal sentencing guidelines were advisory rather than mandatory.

At the commission hearing Thursday, U.S. Attorney for the Northern District of Georgia Sally Quillian Yates, speaking on behalf of the DOJ, said the ruling has left federal prosecutors sidelined in sentencing decisions, as the “only ones in the courtroom who were still acting like the guidelines were mandatory.”

“This new policy recognizes the reality of post-Booker sentencing and the need for an appropriate balance of consistency and flexibility to maximize the crime-fighting impact of federal law enforcement,” said Yates in prepared remarks.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) praised the new guidelines.

“With this new policy, Attorney General Holder has taken a further step toward restoring the Justice Department’s commitment to enforcing the law aggressively, effectively, and fairly,” Leahy said in a statement. “I applaud Attorney General Holder for his forward-thinking and common-sense update to the Justice Department’s policies on charging criminal cases, making plea deals, and seeking sentences. This is a marked change in the policies implemented by the Bush Justice Department. By emphasizing both the importance of consistency and the need to carefully consider the specific facts and circumstances of each case, Attorney General Holder ensures that the Department will strive to reach the most fair and appropriate result in each case. His new policy gives prosecutors the flexibility they need to secure important plea deals and charge cases in the way best calculated to obtain convictions.”
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