On May 19, 2010, Attorney General Eric H. Holder Jr. announced the Justice Department’s new policy on charging, plea bargaining and sentencing.1 “New” is a bit of an overstatement, as Mr. Holder’s memo notes that its purpose is to “reaffirm the guidance” provided by the principles of federal prosecution that were first memorialized 30 years ago. That said, the new policy does reflect a number of subtle, and substantive, changes in text and tone from the policies of Mr. Holder’s recent predecessors. This article will summarize notable changes in charging, plea bargaining and sentencing policy—with an emphasis (consistent with the nature of this column) on the last.
Thirty years ago, Attorney General Benjamin R. Civiletti published the Justice Department’s “Principles of Federal Prosecution”—containing specific guidance on how federal prosecutors should decide what charges to bring, what plea bargains to strike, and what sentences to seek.2 Many of his successor Attorneys General followed suit, with Richard Thornburgh,3 Janet Reno4 and John Ashcroft5 each issuing his or her own iteration of these policies.6
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