Will Holder Memo Reduce DOJ-Acknowledged Sentencing Disparities?

Time will tell whether Attorney General Eric Holder’s recent policy memo to federal prosecutors will actually reduce white-collar sentencing disparities that Justice Department officials have admitted are widespread and significant.

“We are especially concerned about increased disparity in white-collar sentencing,” Assistant Attorney General Lanny Breuer of the Criminal Division told American Bar Association conference attendees in February. Breuer said, “It is not uncommon for a health care fraud defendant to be sentenced to 15 or more years in one district court, while, in the same week, another defendant in another court involved in a larger fraud is sentenced to a very short prison term.” Breuer noted that an appellate court recently affirmed a 25-year prison sentence for someone involved in a $40 million fraud while, almost simultaneously, another defendant involved in a $1 billion fraud got just five years in prison.

The May 19 guidance from the attorney general says, “People who commit similar crimes and have similar culpability should be treated similarly.” It directs that all charging decisions be reviewed by a supervisory attorney and that all but the most routine indictments should be accompanied by a document that sets out charging options and explains the charging decision.

The issue has been a subject of heated discussion on the legal blogosphere as professors and practitioners on Letter of Apology, Sentencing Law and Policy , the Snitching Blog, and others analyze the Holder memo and Breuer comments to gauge its real-world impact.