DOJ’s post-Booker memo to line prosecutors
I noted in this post yesterday that I had heard that Main Justice had sent a memorandum to all federal prosecutors setting out DOJ’s policies and procedures in the wake of Booker. Today in the Wall Street Journal, Laurie Cohen has this thoughtful article (subscription required) discussing the January 28 memorandum from Deputy Attorney General James Comey to all federal prosecutors entitled “Department Policies and Procedures Concerning Sentencing.” Since the WSJ is now the paper of record, I can follow-up by providing the full memo for downloading below.
This Jan. 28 Comey memo is a short but interesting read for a number of reasons. It asserts that federal prosecutors “must actively seek sentences within the range established by the Sentencing Guidelines in all but extraordinary cases” and explains that the Solicitor General will ensure DOJ “takes consistent and judicious positions in pursuing sentencing appeals.” Also, as stressed in the WSJ article, the memo notes that the Executive Office of US Attorneys is “distributing instructions for reporting (1) sentences outside the appropriate Sentencing Guideline range, and (2) cases in which the district court failed to calculate a Guideline range before imposing an unreasonable sentence.”
I would be interested in reader comments on all aspects of this memo. In my view, the substance is neither surprising nor all that provocative, but the tone is fascinating. In particular, I am intrigued by the “keep your chin up” theme: DAG Comey at the outset commends prosecutors “for your flexibility, your creativity and your good humor in these difficult times” and in closing lauds prosecutors’ hard work and says that their “ability and dedication will get the job done in these challenging times.”