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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.

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