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December 5, 2008

Should plea agreements be available to the public?

I just noticed via SSRN this new student note by David Snyder in the Fordham Urban Law Journal.  The notes is titled "Nonparty Remote Electronic Access to Plea Agreements in the Second Circuit," and here is the abstract:

The advent of electronic access to case files gives rise to security concerns previously unrealized in the era of paper records.  The emergence of a "cottage industry" of websites that republishes court filings and plea agreements online for the purposes of witness intimidation, retaliation, and harassment poses a grave risk of harm to cooperating witnesses and defendants.  The benefits associated with the remote electronic availability and dissemination of judicial documents may thus come at a considerable cost.

This Note describes the options that district courts within the Second Circuit could implement sua sponte to mitigate these concerns. For example, courts may adopt a local rule or protocol that curtails electronic access to plea agreements in response to the risks effectuated by PACER. This medium-based approach suffers from a number of practical and legal deficiencies, including the violation of Federal Rule of Criminal Procedure 49.1, which does not permit categorical protective orders. Alternatively, rather than modifying access rights depending upon the medium through which access is sought, courts may seek to prohibit all access to sensitive filings through categorical sealing measures.  This approach is unworkable in the Second Circuit, which requires case-by-case determinations with respect to motions to seal.  Finally, courts may choose to reconsider which documents ought to be maintained in the public record.  This Note concludes that the last option is preferable due to its ability to withstand scrutiny under both the access doctrine and Federal Rule of Criminal Procedure 49.1.

The Note also includes a comprehensive survey of the electronic access policies of the federal district courts.

December 5, 2008 at 08:43 AM | Permalink


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This is a mixed bag. Innocent folks who are cooperating with the prosecution can be harmed when intimate details become public. On the other hand, there is sometimes a public service performed when some of our sleaziest citizens are exposed for the human trash that they are. CHECK OUT WWW.WHOSARAT.COM.

Posted by: mike | Dec 5, 2008 8:58:29 AM

In answer to the question in the headline, "Yes Sir!!"

We're talking about the denouement of 97%+ cases. Failing to make plea agreements public would make a mockery of the concept of open courts that are transparent and accountable to the public.

There are many, MANY public policy interests in keeping that information a public record which far outweigh the concerns over the Whosarat database, etc., which appear to be what's driving this writer's wrong-headed call for judicial secrecy.

Posted by: Gritsforbreakfast | Dec 5, 2008 9:01:18 AM

I am behind, besides, in front, and joined at the hip with Grits on this one. Public proceedings need to be made public. There has always been a concern about witness intimidation and harassment. It's nothing new. There is a price to be paid for a free society and that price is that people have to pay a cost to defend it. Freedom isn't perfect; sometimes the guilty walk away. But look around the world; the alternatives are much much worse.

Posted by: Daniel | Dec 5, 2008 10:56:25 AM

It's not too often that I disagree with Grits. See Hous. Auth. v. Van De Kamp, 223 Cal. App. 3d 109:

The dissemination of criminal history information significantly affects an individual's right to privacy as guaranteed by article I, section 1 of the California Constitution. ( Central Valley Ch. 7th Step Foundation, Inc. v. Younger (1989) 214 Cal.App.3d 145, 151-152 and fn. 3 [262 Cal.Rptr. 496].) Accordingly, the Legislature has narrowly defined the instances in which such information may be disseminated (see Loder v. Municipal Court (1976) 17 Cal.3d 859, 872-873 [132 Cal.Rptr. 464, 553 P.2d 624]) and has established criminal sanctions for its unauthorized dissemination. Section 11076 declares: "Criminal offender record information shall be disseminated, whether directly or through any intermediary, only to such agencies as are, or may subsequently be, authorized access to such records by statute." Moreover, it is a misdemeanor for any employee of the Department of Justice (§ 11141) or "[a]ny person authorized by law to receive a record" or information therefrom (§ 11142) knowingly to furnish that record or information to an unauthorized person. (See Loder, supra, at pp. 872-873.)

Also see Westbrook v. County of L.A., 27 Cal. App. 4th 157:

The United States Supreme Court has concluded that a third party's request for law enforcement records of a private citizen "can reasonably be expected to invade that citizen's privacy, and that when the request seeks no 'official information' about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is 'unwarranted.' " ( U.S. Dept. of Justice v. Reporters Committee (1989) 489 U.S. 749, 780 [103 L.Ed.2d 774, 800, 109 S.Ct. 1468].) The case in which this conclusion was reached is distinguishable from the one before us in several respects, including the fact that the information sought in that case was the rap sheets of four persons believed to be connected with organized crime, and the case was decided under the federal Privacy Act of 1974 (5 U.S.C. § 552a) rather than a specifically controlling statute. The rationale of the case is persuasive, nonetheless, and provides additional support for our conclusion that the judgment in this case should be reversed.

If entities such as respondent are provided with periodic copies of MCI, or any part thereof which includes the identity of the defendant and the charges filed against the defendant, the potential for misuse of the information is obvious. If, for example, the court ordered a record maintained by a criminal justice agency to be sealed or destroyed because a defendant had been found to be factually innocent of the charges ( Pen. Code, § 851.8, subds. (c), (d), and (j)), the information would still be available for sale by respondent. Or, to cite another example, if a defendant was granted statutory diversion, this information would be available to the public from respondent even though it could not be obtained from the California Department of Justice. (See Central Valley Ch. 7th Step Foundation, Inc. v. Younger (1989) 214 Cal.App.3d 145, 151 [262 Cal.Rptr. 496].) The only control on access to the information in respondent's possession would be the price he places on it. This is precisely the danger against which the Legislature intended to guard against when it enacted Penal Code sections 11105 and 13300.

The record would still be available at the court clerk's office and many of them contain everything an identity thief could hope for. If an identify thief wants that information he should have to at least have to work hard enough to go the the courthouse to get it.

Posted by: George | Dec 5, 2008 11:17:40 AM

I'm extremely skeptical of the oft-seen argument that "public access to this record was acceptable when access was inconvenient and/or expensive, but now that it's cheap and easy, it's no longer appropriate." Among other things, that encourages an extremely perverse relationship between citizen and government and an offensive view of the government's obligations.

From my view (ex-AUSA, current defense lawyer) the courts -- or at least the federal courts -- are sufficiently cooperative with requests to file plea agreements under seal when there is a specific and supportable reason to do so -- as with cooperation agreements.

Posted by: Ex-Fed | Dec 5, 2008 11:57:45 AM

"he should have to at least have to work hard enough to go the the courthouse to get it."

That's not an argument! Either this information should be public record or not. If it is, the means of disseminsation doesn't matter. I've retrieved such information directly from the courthouse in state cases literally hundreds of times - it's hardly a limitation.

Posted by: Gritsforbreakfast | Dec 5, 2008 12:09:48 PM

George: and would you apply that logic to Sex Offender Registration? If not, why not? If so, how then how do you reconcile CA policy on sex offenders with your stated position here? Are sex offenders somehow how less liable to identity theft? Are they less subject to privacy rules than other criminals? Why?

Posted by: Daniel | Dec 5, 2008 12:34:59 PM

Grits, that is an argument that the Reporters Committee court found. There is a difference between wide/computerized dissemination and the extra burden of going to the court to get the information, which suggest the person really wants and needs it. Why should some identity thief in Russia have access to it? You don't need a lot of this information to maintain a check on the judicial system so some of it should not be computerized for public consumption. It should be redacted.

Daniel, I'm not sure if it's been thoroughly litigated from the privacy perspective, but the registries do not include the identification numbers that criminal records require, such as Social Security numbers and driver's license numbers, which are the kinds of numbers an identity thief loves. If some states include these number there may be a cause of action there, but as I too often painfully make clear by bad arguments and book reports, I'm not a lawyer. One argument could be the privacy right is by statute: Penal Code sections 11105 and 13300, and what the Lord givieth, the Lord can taketh away. But if you want to dig deeper maybe the privacy rights of police officers in Copley vs. Superior Court (LA Times) will shed some light on if privacy is constitutional or statutory in some circumstances.

Posted by: George | Dec 5, 2008 1:22:25 PM

Plea agreements should be public. How else will we know the price paid for testimony? The public has a right to know how prosecutors make sausage.

Posted by: beth | Dec 5, 2008 4:58:09 PM

George, the Whosarat database has a business model with paying customers (mostly criminal defense lawyers), so they'll have an economic incentive to gather and scan in such information even if the state doesn't put it on PACER.

It's a fool's game to try to pick and choose between media or distribution methods. Information wants to be free. If it's available from the government in only one format, the probative parts will inevitably become available online.

That said, Beth makes the most important point - for the most part, this information SHOULD be public! It's important to provide checks and balances and if testimony is purchased with reduced criminal culpability, the public has a right to know because that can be a particularly problematic crime-fighting strategy.

Posted by: Gritsforbreakfast | Dec 8, 2008 8:45:59 AM

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