On May 26, 2010, in advance of the United States Sentencing Commission’s public hearing regarding statutory mandatory minimums, US Attorney General Eric H. Holder, Jr., revealed that on May 19, 2010, his office issued new, department-wide guidance for federal prosecutors related to policies on the charging, plea negotiating and sentencing of federal crimes. The new policy specifically emphasizes that all charging decisions, plea agreements and sentencing requests must be based on, and informed by, a “individualized assessment” of the specific facts and circumstances of each particular case and defendant. 

This new policy is a departure from the previous guidance issued by former Attorney General John Ashcroft, which mandated that with limited exceptions that a prosecutor must charge and pursue the “most serious, readily provable offense” and then advocate for a sentence within the resultant guideline range produced by the United States Sentencing Guidelines (USSG). Attorney General Holder’s guidance expressly replaces the Ashcroft memorandum.

While the Ashcroft policy had been grounded in the belief that the USSG’s were mandatory upon the sentencing court—which a series of well-known Supreme Court decisions have shown to be false—it took much discretion away from prosecutors to weigh various facts, the individualized circumstances of the crime and the defendant’s conduct; instead, the policy placed emphasis on the ability of the prosecution to simply prove the most serious crime in making a charging decision. The new Holder guidance removes such strictures and requires the prosecutor to look at the specific circumstances of each case and to conduct an individualized assessment of the facts and circumstances before arriving at a charging decision or plea arrangement. This flexibility will undoubtedly shift the Department of Justice’s emphasis away from mere punishment.

Among the changes, the new guidance requires that:

  • Though they should ordinarily charge and pursue the most serious offense, prosecutors must base their decisions on the specific circumstances of each case;
  • Though they should seek a plea to the most serious offense, the plea should be informed by an individualized assessment of the specific facts and circumstances of each particular case;
  • Though they should generally advocate for sentences within the sentencing guidelines, prosecutors should advocate with the understanding that sentencing guidelines are advisory only and the sentences must be based on the particular facts and circumstances of each case; and
  • Prosecutors must continue to obtain approval from supervisory attorneys regarding charges, plea agreements, and any departures or variances from the sentencing guidelines.

In light of these changes, as well as the USSG amendments that take effect November 1, 2010, careful attention should be paid while working to resolve matters with the Department of Justice. Renewed emphasis will not only be on skilled negotiation by counsel, but also analysis prior to negotiations on such issues as: the existence of compliance programs by corporate targets; unjust or disproportionate consequences of the pursuit of various criminal charges; and the proffer of facts that, although not necessarily legal defenses, could mitigate the questioned conduct or place the alleged conduct into context, which will influence the prosecutor’s understanding of the facts and circumstances of each case. These new internal DOJ guidelines appear to create much greater opportunities for persuasive presentations to prosecutors than were available under the far more formulaic guidelines that have now been replaced.

For information about Mayer Brown’s White Collar Defense & Compliance practice, please visit mayerbrown.com or contact Vince Connelly at vconnelly@mayerbrown.com or Lynn Neils at lneils@mayerbrown.com.