Last month, Attorney General Eric H. Holder, Jr. issued a memorandum concerning a new Department of Justice (DOJ) policy on charging and sentencing (Holder Memo). The Holder Memo requires that the individualized facts and merits of each matter will determine the DOJ’s charging, plea and sentencing decisions.

The theme of the Holder Memo is fact-specific determinations. This reverses DOJ policies requiring federal prosecutors to charge the most serious offense. The Holder Memo provides that the charging determination “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….’” Memorandum from Eric H. Holder, Jr., Attorney General, to All Federal Prosecutors, Department Policy on Charging and Sentencing (May 19, 2010)(citing United States Attorneys’ Manual 9-27.300). As with charging decisions, the Holder Memo requires that a plea agreement should include the most serious offense, but be “informed by an individualized assessment of the specific facts and circumstances of each particular case.” Id. Moreover, the Holder Memo dictates that prosecutors must also rely on the “individualized assessment” of the particular case at sentencing.   

The Holder Memo supersedes three previous DOJ memoranda issued by Attorney General John Ashcroft and Deputy Attorney General James Comey. The most recent DOJ memorandum on these topics was issued over five years ago by Deputy Attorney General James Comey (Comey Memo) after the United States Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). The Comey Memo emphasized the importance of consistency. Memorandum from James B. Comey, Deputy Attorney General, to All Federal Prosecutors, Departmental Policies and Procedures Concerning Sentencing (Jan. 28, 2005). It provides that “[o]ne of the fundamental imperatives of the federal sentencing system is to avoid unwarranted disparity among similarly situated defendants.”  Id. The Holder Memo now requires the DOJ to seek individualized justice based on the matter’s specific facts and circumstances.

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