Attorney General Eric H. Holder, Jr., recently issued a significant memorandum to all federal prosecutors, dated May 19, 2010. This memorandum supersedes prior memoranda, including that issued by past Attorney General John Ashcroft. This new memorandum, dubbed the “Holder Memorandum,” outlines policies for federal prosecutors for purposes of charging decisions, plea agreements and sentencing issues.
The Holder Memorandum maintains the Department of Justice position that 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”. The Holder Memorandum is different from prior directives, however, in providing a basis for a departure from the requirement of charging the most readily provable offense, if the individual facts warrant such a decision. In the words of the Attorney General, these decisions must always be made in the context of "an individualized assessment of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purpose of the Federal criminal code, and maximize the impact of Federal resources on crime." This “individualized assessment” is to be applied not only to the original charging decisions, but also to decisions relating to plea negotiations and the application of statutory sentencing enhancements. The Attorney General stated: “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.”
In our judgment, the Holder Memorandum will have the effect of allowing more discretion for individual federal prosecutors to evaluate their cases based on each individual defendant’s circumstances. Federal prosecutors should no longer feel bound to the concept of charging every provable count in an indictment in all cases. In fact, the Memorandum notes that it will not be acceptable to bring charges simply to exert more leverage to extract a plea. Please contact our firm at tfindley@lawfla.com if you would like more information on the Holder Memorandum.
