Ralph Waldo Emerson famously wrote that “a foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” On May 19, 2010, Attorney General Eric Holder Jr., issued a memorandum to all federal prosecutors setting forth a new “Department Policy on Charging and Sentencing.”1 Acknowledging the vastly changed landscape in the post-Booker era, and aiming to make prosecutors more relevant to the process by which federal sentences are now determined, the Holder Memorandum reflects a sharp philosophical break away from the overly rigid and severe policies that marked the prior administration and toward a more nuanced and “individualized” approach to prosecution and punishment.

Back in 2003, spurred on by misguided congressional efforts to chill the frequency of downward departures at federal sentencings, then-Attorney General John Ashcroft issued a series of policy memoranda reflecting a “re-examination” of the Department of Justice’s (DOJ) policy on charging, pleas and sentencing. The new rules placed an almost exclusive emphasis on uniformity and consistency. Prosecutorial (as well as judicial) discretion was viewed as something to be cabined and controlled, and was in fact severely limited. The “most serious” offense carrying the most severe punishment was to be pursued with only the narrowest of predefined exceptions, and prosecutors were commanded to “actively seek sentences within the range set by the [Sentencing] Guidelines in all but extraordinary cases.”

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