Via Doug Berman , Attorney General Eric Holder demonstrated the substantive difference between a Democratic and Republican administration’s approach to imprisoning its citizenry: Not much.
By Memo dated May 19th, Holder writes:
The reasoned exercise of prosecutorial discretion is essential to the fair, effective and even-handed administration of the federal criminal laws. Decisions about whether to initiate charges, what charges and enhancements to pursue, when to accept a negotiated plea, and how to advocate at sentencing, are among the most fundamental duties of a federal prosecutor. For nearly three decades, the Principle of Federal Prosecution, as reflected in Title 9 of the U.S Attorneys’ Manual, Chapter 27, have guided federal prosecutors in the discharge of these duties in particular, and in their responsibility to seek justice in the enforcement of federal criminal laws in general.
What a set-up. What a start. And so where does this talk of justice go?
The purpose of this memorandum is to reaffirm the guidance provided by those principles.
Move over Dick Thornburgh. Step aside John Ashcroft. Holder’s moving in.
Berman notes that there is a hint of a difference in approach.
Distilled to its essence, it seems that instead of a general policy that federal prosecutors “must” charge and pursue the most serious offense and must advocate a within-guideline sentence, this new Holder memo now asserts that federal prosecutors “ordinarily should” charge and pursue the most serious offense and “should generally” continue to advocate a within-guideline sentence.
It was never exactly true that federal prosecutors in various districts around the nation truly complied with any of the directives out of D.C. There are always human beings who act in accordance with conscience, propriety and proportionality. Then there were the zealots, who would have the death penalty apply to everything.
But as AG (and later Justice) Robert Jackson noted in 1940 ,
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.
Back then, the Attorney General sought to instill in prosecutors a sense of the awesome power they possessed, and the obligation of using it with discretion. But what did he know, when he could have directed his troops to blindly do as much harm as possible.
At least Holder allows for the tiniest possibility of humanity to enter into the federal prosecutor’s job. The question then becomes whether any AUSAs possess such a quality, or have the guts to use it within a culture of highest charge and harshest sentence.