Chief Judge Frederico Moreno, Southern District of Florida,  opened a can of worms by ordering that all plea agreements be publicly available on PACER, the federal electronic access system for court filings.  On its face, it does nothing more than make documents that are otherwise publicly available at the courthouse now easily and inexpensively available to everyone, no matter where they are.  Certainly this opening the door to judicial transparency can’t be bad.

“The sense of the Court is that the public’s interest in access must prevail in this instance and that restricting access to all plea agreements is overly broad,” states Moreno’s order. “Other means are available to the prosecution and defense to insure that the public record does not contain information about cooperation agreements in those instance where the interests of safety or other considerations require different treatment.”

Yet Judge Moreno’s decision raises a bunch of issues that make this facially easy decision troubling, enough so that the Department of Justice strenuously opposed it.  While that, almost by definition, should mean that criminal defense lawyers should favor it, the lines aren’t drawn quite the way one would expect. 

Doug Berman was the first to post about Judge Moreno’s order, and the comments reflect a diversity of strongly held concerns.  On the one side are strong voices in favor of judicial openness, arguing that anything that allows the public greater access into the workings of the system serves to enhance the integrity of the system, and allows public oversight of the shadier dealings by the government.  On the other side, easy access to plea agreements risks cooperators and witnesses to intimidation and potential harm.  Others point out that agreements with cooperators are routinely sealed, and hence won’t be available anyway while the cooperators are active.

In the old days, the first thing one noticed in trying to figure out who had flipped was who didn’t show up in court for the next appearance.  That was the defendant who turned rat.  The biggest problem the government faced was how to keep all the rats separate from all the non-rats at the MCC.  There just weren’t enough floors or wings.  The sealed plea agreement might deny access to details, but is just as much a red-light as to who’s flipped.  The cooperators working the streets present a different problem, since one wouldn’t necessarily know to look for a pending case or an open plea agreement.  Eventually everyone would know, but by then the damage was done.

There are many permutations of this problem, and they not only touch the government, but also those defense lawyers whose clients have chosen to cooperate and who, by easy access, could well be killed for their choice. Some might argue that this is part of the life they chose, especially when they went from being criminal to snitch, but death is far too harsh a penalty in any event.  Not being inclined to represent cooperators, this problem doesn’t touch me directly, but it’s still very real.  While some defendants would by angry with cooperators, they would never do anything to hurt them.  Others would kill a rat in a blink of an eye.

Another concern that arises from the easy access to criminal information is its use and abuse by those who want to “help the public” know about all the criminals living near them, using access to information to create websites and databases to shame people in perpetuity or create danger zones around them that will haunt defendants forever.  This is particularly troubling with sex offenders, who are already the subject of impossible living restrictions and potential harm and derision following the completion of their sentences.  The greater the dissemination of people’s wrongs, the greater the likelihood that no sentence will ever end and no convict will ever have a chance of reentering society as a law-abiding citizen.  No one will be able to leave their wrongdoing in the past.

For those who argue the straight public information line, that transparency is an end in itself, the use of sealed plea agreements and redacted filings tends to undermine the concept while leaving those the government doesn’t wish to protect fully exposed.  On the other hand, all of this information exists already, and the only real change is its easy availability.  But it’s the easy availability that will lend to some of the mischief to which this information is put, such as mass listings of “criminals” that have become the rage.

Ultimately, I suspect that we will be better off with plea agreements being treated no differently than any other court filing, subject to availability on PACER and readily available to anyone for the asking.  Either way, however, there will be problems and some will suffer for this change.  I feel far less concerned for the cooperating defendant, who has chosen his lot, than the defendant who can never escape his criminal record and whose future will be forever tarred. 

This is a far more complex and difficult question than the discussion has yet recognized, and problematic consequences will be felt by all sides in the discussion.  I’ve barely scratched the surface in the few thoughts written here, and have been troubled by the possibilities since Doug first raised the question.  But none of the discussion nor thoughts have clarified the relative balance of good and bad on the bread array of problems fixed or caused by plea agreements being available on PACER.  I’m sure that every lawyer, prosecutor and defense, can add a dozen experiences where this will help/hurt someone in a unique way, and we can argue ad naseum over which side outweighs the other. 

Ultimately, it comes down to a policy choice, and the systemic benefits of transparency tips the scales in favor of Judge Moreno’s order, even though many will suffer negative consequences as a result.  But this issue is anything but simple.

Addendum:  Doug Berman has posted again on this subject, but it occurs to me that he has yet to do anything more than quote other sources.  I would hope that Doug would have a thought on the topic, and perhaps might use his blog to add a little value to his posts rather than just reiterate other people’s posts. 

If it’s worthy of multiple posts, isn’t it worthy of some level of analysis and perhaps even an opinion?