Updated 1:15 p.m.
Attorney General Eric Holder Jr. this month issued new guidance to federal prosecutors in a memo that one U.S. attorney said today provides greater flexibility, and calls for more collaboration, in making charging decisions in criminal cases.
The Holder memo, which was submitted yesterday to the U.S. Sentencing Commission for its hearing today in Washington, says the “reasoned exercise of prosecutorial discretion is essential to the fair, effective, even-handed administration of the federal criminal laws.”
The May 19 guidance, which replaces previous memos from then-Attorney General John Ashcroft and then-Deputy Attorney General James Comey, says all charging decisions must be reviewed by a supervisory attorney. All but the most routine indictments should be accompanied by a document that sets out charging options and explains the charging decision. People who commit similar crimes and have similar culpability should be treated similarly.
“Unwarranted disparities may result from disregard for this fundamental principle,” the memo says. “They can also result, however, from a failure to analyze carefully and distinguish the specific facts and circumstances of each particular case.”
U.S. Attorney Sally Quillian Yates of Atlanta, who spoke today at the sentencing commission hearing, said the Holder memo recognizes that the federal sentencing guidelines were made advisory by the Supreme Court in 2005. Yates said Justice Department prosecutors had been “the only ones in the courtroom who were still acting like the guidelines were mandatory.”
That harmed the department’s ability to influence sentencing decisions. Prosecutors, Yates said, “ended up out of the conversation” because they would argue, somewhat robotically, that the government is recommending a guideline sentence. The conversation would then proceed between the judge and the defense attorney. “We need to be part of that conversation,” Yates said.
More after the jump.
Still, the Justice Department will continue to advocate for guideline sentences “because in the majority of cases we believe that is the fair and appropriate sentence,” Yates said. But the department, she insisted, must also adapt.
Sentencing Commission Vice Chairman William Carr Jr. said the Holder memo “clearly” gives more flexibility to assistant U.S. attorneys. In particular, Carr, a former federal prosecutor in Pennsylvania who retired in 2004, said the new guidance suggests there will be more flexibility to not argue for mandatory-minimum sentences.
The thrust of Yates’ remarks today centered on the department’s ongoing review of sentencing and correction policy—Holder created a working group last spring—and the need to address growing disparity in sentencing and excesses in mandatory-minimum sentencing.
The Justice Department, she said, supports a “limited and judicious use” of mandatory sentencing. The vast majority of mandatory minimums—there are 170 federal crimes that carry them—are applied in drug and firearms cases.
Mandatory sentencing laws, Yates said, help to deter crime and encourage cooperation by those involved in crime. But a preliminary assessment by the working group, she said, is that mandatory sentencing has come with a “heavy price.” Yates said there are “significant excesses” in prison sentences for some offenders under existing law. She did not specify any one crime.
Yates also highlighted disparity in sentencing for white-collar crime and child exploitation. “For both of these, the sentences have become increasingly inconsistent,” she said.
Yates’ remarks mirror those of other Justice officials, including Assistant Attorney General Lanny Breuer of the Criminal Division. Breuer has called the increasing disparity in sentencing a concern of the department.
Senate Judiciary Chairman Patrick Leahy (D-Vt.) released this statement Thursday afternoon on the Holder memo:
“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. 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.”