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The Eric Holder Memo on the "Reasoned Exercise of Prosecutorial Discretion" & the Swartz Affair ~pj
Sunday, February 10 2013 @ 08:41 PM EST

When Aaron Swartz died, I told you that I'm no expert on criminal law, and I'm not. So I couldn't really provide a star to guide anyone. But what I could do is research and provide information so you could be fully informed. That's what journalists are for.

And now I've come across something that I think might be helpful, a May 19, 2010 memo [PDF] by Attorney General Eric H. Holder, Jr. to all federal prosecutors, letting them know that he wanted them to be fair and reasonable in exercising their prosecutorial discretion. He told them that he wanted them to be flexible, too, not necessarily bound by maximum/minimum guidelines, but to look at the individual circumstances of each case, stating that the "reasoned exercise of prosecutorial discretion is essential to the fair, effective, and even-handed administration of the federal criminal laws". That raises a natural enough question, of course, about whether that policy was followed in the Swartz case, but that isn't what struck me. It's this as BLT explained it at the time:

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.
If Massachusetts followed that guidance, there should be such a memo in existence. Since members of Congress sent a letter to the Attorney General, asking for details, and they've been promised a closed briefing, I would imagine this explanatory document, if it exists, might be exactly what they are looking for, in that it was written contemporaneously instead of after the huge public furor.

Here's an excerpt from the memo, the subject line for which is "Department Policy on Charging and Sentencing":
Charging Decisions: Charging decisions should be informed by reason and by the general purposes of criminal law enforcement: punishment, public safety, deterrence, and rehabilitation. These decisions should also reflect the priorities of the Department and of each district. Charges should ordinarily be brought if there is probable cause to believe that a person has committed a federal offense and there is sufficient admissible evidence to obtain and sustain a conviction, unless "no substantial Federal interest" would be served, the person is subject to "effective prosecution" elsewhere, or there is "an adequate non-criminal alternative to prosecution" [USAM 9-27.200 et seq.].

Moreover, in accordance with long-standing principle, a federal prosecutor should ordinarily charge "the most serious offense that is consistent with the nature of the defendant's conduct, and that is likely to result in a sustainable conviction" [USAM 9-27.300]. This determination, however, 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 criminal conduct, and due consideration should be given to the defendant's substantial assistance in an investigation or prosecution. As a general matter, the decision whether to seek a statutory sentencing enhancement should be guided by these same principles.

All charging decisions must be reviewed by a supervisory attorney. All but the most routine indictments should be accompanied by a prosecution memorandum that identifies the charging options supported by the evidence and the law and explains the charging decision therein. Each office shall promulgate written guidance describing its internal indictment review process.1

Plea Agreements: Plea agreements should reflect the totality of a defendant's conduct. These agreements are governed by the same fundamental principle as charging decisions: prosecutors should seek a plea to the most serious offense that is consistent with the nature of the defendant's conduct and likely to result in a sustainable conviction, informed by an individualized assessment of the specific facts and circumstances of each particular case. Charges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant's conduct. All plea agreements should be consistent with the Principles of Federal Prosecution and must be reviewed by a supervisory attorney. Each office shall promulgate written guidance regarding the standard elements required in its plea agreements, including the waivers of a defendant's rights.

1 This memorandum has no impact on the guidance provided in the September 22, 2003 memorandum and elsewhere regarding "fast-track" programs. IN those districts where an approved "fast track" program has been established, charging decisions and disposition of charges must comply with the Department's requirements for that program.

Any such explanatory document might also be useful to MIT in its own investigation.


The Eric Holder Memo on the "Reasoned Exercise of Prosecutorial Discretion" & the Swartz Affair ~pj | 183 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: bugstomper on Sunday, February 10 2013 @ 09:09 PM EST
Please summarize in the Title box error->correction or s/error/correction/ to
make it easy to scan see what needs to be corrected and to avoid duplication of

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Sunday, February 10 2013 @ 09:11 PM EST
Please stay off topic in these threads. Use HTML Formatted mode to make your
links nice and clickable.

[ Reply to This | # ]

News Picks Threads
Authored by: bugstomper on Sunday, February 10 2013 @ 09:14 PM EST
Please type the title of the News Picks article in the Title box of your
comment, and include the link to the article in HTML Formatted mode for the
convenience of the readers after the article has scrolled off the News Picks

Hint: Use Preview to check that your links are ok. Avoid a Geeklog
"feature" that posts long links broken by inserting line breaks in the
URL at punctuation points such as
<a href="

[ Reply to This | # ]

Comes transcripts here
Authored by: bugstomper on Sunday, February 10 2013 @ 09:16 PM EST
Please post your transcriptions of Comes exhibits here with full HTML markup but posted in Plain Old Text mode so PJ can copy and paste it

See the Comes Tracking Page to find and claim PDF files that still need to be transcribed.

[ Reply to This | # ]

Carmen Ortiz
Authored by: Anonymous on Sunday, February 10 2013 @ 09:16 PM EST
Having followed Groklaw since it began, I have a better understanding of how
attorneys behave. I am waiting to see how they will weasel out of this one....

[ Reply to This | # ]

"Charges should not be filed simply to exert leverage to induce a plea ..."
Authored by: Anonymous on Sunday, February 10 2013 @ 10:56 PM EST
This part of the memo clearly points to something very wrong
with Aaron's prosecution

[ Reply to This | # ]

"Reasoned Exercise of Prosecutorial Discretion"
Authored by: Anonymous on Sunday, February 10 2013 @ 11:05 PM EST
Umm, I have a feeling that similar memos get issued with each new AG. Does
anyone know if John Ashcroft issued a memo like this?

And yes, I think that the majority of prosecutors knew of this memo and ignored
it because they continued to be evaluated on conviction rates. Conviction rates
are too easy of a metric for management to use. For this policy to be taken
seriously, it would have to include some changes to how prosecutors are
evaluated, otherwise nothing changes.

[ Reply to This | # ]

Any such explanatory document ...
Authored by: Anonymous on Sunday, February 10 2013 @ 11:48 PM EST
> If Massachusetts followed that guidance,
> there should be such a memo in existence.

Tssk PJ, you're writing in a style that's giving me a suspicion
that you wouldn't be surprised if the document does not exist.

[ Reply to This | # ]

The Eric Holder Memo on the "Reasoned Exercise of Prosecutorial Discretion" & the Swartz Affair ~pj
Authored by: Anonymous on Monday, February 11 2013 @ 04:20 AM EST
Employees react more on what management do and less on what management tell.
Memos and nice visions are just that, memos and nice visions.

You can tell people to exercise discretion and be fair, but if they think that
they are evaluated on toughness and convictions rates, they will go for
toughness and convictions rates.

I also read somewhere that previous command was to go for maximum. So, this memo
is effectively trying to change ways they did for years. Unfortunately, culture
changes are hard and take a long time. It will not happen out of one memo or
command, you must also change the way you evaluate them.

[ Reply to This | # ]

Authored by: cricketjeff on Monday, February 11 2013 @ 05:58 AM EST
Unless those in positions of power believe they will be judged as harshly or as
fairly as they judge there is no incentive for them to behave as reasonable

Any prosecutor who says "I would never disobey the law" should be
immediately dismissed as an unreasoning person incapable of exercising
appropriate judgement. The overwhelming principle for prosecution must be
"In the public interest", if the prosecutor isn't prepared to stand up
in public and put forward the case for the maximum they have asked for being in
the public interest they have not done their jobs.

There is nothing in life that doesn't look better after a good cup of tea.

[ Reply to This | # ]

Freedom of Information Act request
Authored by: Anonymous on Monday, February 11 2013 @ 09:34 AM EST
How difficult would it be to get the memo via a Freedom of Information Act
request? There are 9 exemptions to FIFA and it doesn't seem to me that any of
those apply here.

[ Reply to This | # ]

Eric Holder in contempt of congress
Authored by: DCFusor on Monday, February 11 2013 @ 09:59 AM EST
For refusing to reveal the details of the "Fast and Furious" program
which instructed gun dealers to break the law and let mexican cartels get guns
that could be traced back here for political reasons.

And this is the same guy who just fired his deputy for admitting that big
bankers are "too big to jail".

I'm sure no one with a lick of sense pays a bit of attention to the most corrupt
Attny Gnl of all time, and that's saying something.

The level of corruption in this "above the law" administration passes
my ability to have sympathy with them at all. And I'm not being partisan here,
or don't mean to be. It's just that they apparently no longer even care to hide
it, that's a new step past the corruption of previous ones.

While an investor shouldn't "drink the koolaid" there's a site out
there on money you should know about - ZeroHedge, that exposes corruption
regularly. I read it as faithfully as Groklaw, for that reason. Some is NSFW,
as people are really getting angry about this.

Why guess, when you can know? Measure it!

[ Reply to This | # ]

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