For the first time in over 20 years, the Department of Justice has updated the United States Attorneys’ Manual, including giving it a new name – “The Justice Manual.”
The Justice Manual is a key resource for U.S. attorneys, detailing not only the current laws that govern federal criminal and civil cases, but also the DOJ practices and policies that federal prosecutors must follow when they investigate and prosecute federal criminal cases.
Title 9 of the Justice Manual (“Principles of Federal Prosecution”) covers DOJ policies governing federal prosecutions – from the principles governing how prosecutors should exercise their discretion when deciding whether to bring criminal charges, to instructions on how to recommend a specific sentence at a sentencing hearing.
The Justice Manual contains a directive to prosecutors to “charge and pursue the most serious, readily provable offenses,” with “serious offenses” being defined as those that carry the longest potential sentences or the highest mandatory minimums. In determining what offenses and defendants to charge, prosecutors are required to consider a number of specific factors, including whether the defendant’s prosecution would serve a substantial federal interest, whether the defendant is subject to effective prosecution at the state level or in another jurisdiction, and whether there is an adequate non-criminal alternative to prosecution.
The Justice Manual also contains a list of “impermissible considerations” in making prosecutorial decisions. Not surprisingly, these considerations include a person’s race, sexual orientation, or political associations, the prosecutor’s own “personal feelings concerning the person, the person’s associates, or the victim,” or the prosecutor’s own professional or personal interests.
Another section creates a requirement that federal prosecutors disclose to the defendant all of the evidence that they plan to use at sentencing and give the defense “sufficient time to review such material and an opportunity to present any refutation that can be mustered.”
The sentencing provisions of the Justice Manual also re-establish an important right for criminal defendants— the right to enforce the promises the government makes when defendants enter into written plea agreements. If a defendant’s plea agreement includes an agreement by the government to recommend a certain sentence or to stipulate to certain facts at sentencing, then the prosecutor “must perform his/her part of the bargain or risk having the plea invalidated.” In our experience, unfortunately, the government does not always honor its plea agreements.
The Justice Manual can be a useful tool for defense attorneys if the attorney thinks a federal prosecutor is “off the ranch” in his or her charging decisions. Of course, the Manual doesn’t give defense lawyers any enforceable rights, but referring to it in plea negotiations in the right case may help improve your bargaining position. It’s also helpful to refer to the Manual in those cases where the defense lawyer has to get a Criminal Chief or First Assistant involved in the discussion. They will often pay more attention to DOJ policies and procedures than some of the front-line AUSA’s.