Today,
public access to the courts means putting court information in the broadest
possible bandwidth of mass communication. The trend toward electronic court
files is just as irreversible and as essential for an efficient and effective
system of criminal justice as global Internet communications and the World Wide
Web have become to our nationÕs economy, culture and government. The Justice
DepartmentÕs proposal to restrict full access to court records only to sheets
of paper stored in the courthouse clerkÕs office is an anachronistic position
that is out of step with our constitutional heritage and the times in which we
live. The difference between access to court records on PACER and in the
courthouse is the difference between the speed of light and the quill.
The
established law recognizes the presumption that documents filed in a court
proceeding are made available for public scrutiny. This presumption of public
access trumps any such categorical restriction on public access to plea
agreements as is currently proposed and requires specific findings to be made
in individual cases. On those occasions when the Sixth Amendment prevails over
the First, it has been a court that decided the exception to the rule in the
context of an individual case, not an administrative act based upon dubious
assumptions and the broad brushstrokes of a general, preemptive censorship of
part of the public court record.
The
contention is that the exclusion of all plea agreement content from PACER and
the loss of all the legitimate benefits that information affords the public and
the Bar is compelled by the assumption that cooperating defendants are possibly
being put at risk. The proposed
blanket prohibition of all references to plea agreements in the PACER system
would turn past precedent on its head. The presumption of general public access
to plea agreements would become a policy of piecemeal denial of general access
to specific court records whenever a suspicion is aroused that public access
could have adverse consequences.
Mere supposition that public disclosure of plea agreements on PACER
could possibly encourage criminal retaliation against witnesses in some cases
results in the absolute debarment of all the peopleÕs right of access to an
entire category of documents in all federal criminal court proceedings on
PACER.
By focusing upon the mere possibility that the presence of
information about plea agreements on PACER could
provide useful information to a person who might
use it to retaliate, the advocates of this proposal exploit public fears and
judicial concerns about crimes of retaliation with a proposal that deprives the
public, news media, defendants and defense counsel of the public information to
which they are entitled.
The Justice DepartmentÕs remedy of preemptive
exclusion also presumes every cooperating witness is at risk and every accused
person who is not cooperating is a threat to those who are. Were that so, the
number of cases of retaliation against cooperators would overwhelm the system.
The fact is that such cases are rare.
Putting
a gag order on every reference to a plea agreement in a public case file on
PACER wonÕt have any impact on the use of the Internet to exchange information
about informants, as long as there are people using the Internet who want to
share such information. Those who would commit criminal acts against
cooperators do not find their motivation to commit this crime staring at
screens of case documents on PACER. They commit such crimes because they are
personally involved in the offenses under investigation and fear the
consequences of exposure and conviction.
A motivated retaliator is hardly deterred because he is unable to access a plea agreement on PACER. Typically, information about who is ŌsnitchingÕ is obtained by far more primitive means, such as fellow detaineesÕ paying attention to who was taken over to the courthouse or federal building and how frequently. It doesnÕt take Internet access for prisoners to communicate on jailhouse pipes or during recreational periods or to give or get word of a cooperator from a visitor.
They
do not need a court website to tell them who is likely to testify against them.
If we truly seek a deterrent effect,
broadly defined, overly general, content prohibitions applied to a website like
PACER are far less effective than actions taken against the individuals who
communicate such information for unlawful purposes.
Supporters of this proposal to bar plea agreements
from the PACER system argue that the Internet is different, that its
exponential expansion of the range of publication, when compared to the printed
page, is more provocative and disruptive than the more familiar and traditional
ways of archiving information. We
do not have websites like www.whosarat.com because the Internet makes it easy to
obtain information. We have whosarat.com because there was a large enough
market for the products, information and gossip it sells to make someone money.
Its customers will not exchange less gossip about what they know, or think they
know, about cooperators and informers because of the suppression of plea
information on PACER. Whosarat.comÕs sources for information are hardly limited
to what is published on PACER, and the website doesnÕt require PACER content to
sustain itself.
Other
Internet sources beyond the reach of CourtÕs prohibition could potentially
supply more information about cooperation than does PACER. Westlaw has its Court Express service
by which the user can search terms within all federal court electronic
documents across multiple jurisdictions. Google, Yahoo, Facebook and MySpace,
topical blogs and listserves could all be used to the purpose of exchanging
information about cooperating individuals and informants.
The
existence of a website like Ņwhosarat.comÓ should not be a catalyst for a
change in federal judicial policy any more than seeking the abolition of the
First Amendment would be sensible because the right of free speech is exercised
by a few in offensive and provocative ways. Our laws and constitutional
principles do not criminalize the ear that hears, or the eye that reads, but
the hand that strikes. If we must remove all information that even hints at the
prospect of a malicious use, what court information on PACER, or countless
other government websites including the Justice DepartmentÕs, could withstand
imaginative speculation about every possible scenario for its misuse?
We
are not presented with any new threat deserving drastic action merely because
information about plea agreements is being distributed more broadly than before
on the PACER website. Motivation to commit a criminal act is not aroused by
information alone and, once aroused, is hardly limited to the contents of PACER
for its fulfillment. Until there is some statistically credible correlation
between public access to plea agreement information as a result of its
publication on PACER and an increase in crimes of retaliation directly
attributable to persons accessing PACER, the proposition that publication of
plea agreements on PACER is a contributing factor in the incidence of
retaliation against cooperating informants and defendants will remain only a
theory linking Internet use to criminal causality in search of proof.
The
impact of the removal of plea agreement content from PACER would adversely
impact criminal defense attorneys in the performance of their duties. They will
not be able to use the technology of PACER to obtain the critical contextual
and comparative information about the terms and conditions of all plea
agreements of record in cases similar to their own. Losing what information
PACER has provided to defense counsel about plea agreements is as equally
detrimental in cases where there is not an agreement to cooperate as it is in
cases where the terms of cooperation, and the prohibitions and conditions that
a defense lawyerÕs client may face, are invaluable to the performance of
defense counselÕs responsibilities.
Accessing
plea agreement information by personal visits to the court house or by phone
calls to the clerkÕs office would waste many hours of time for lawyers and
clerk personnel, the very inefficiency that motivated the establishment of
PACER in the first place. The exclusion of plea bargains from PACER will
handicap legal professionals far more than it will handicap those who use the
Internet to share information about cooperating individuals.
Even
if the Administrative Office of the Courts were to restrict plea agreements
from PACER, the primary effect would be to enrich court record research
companies who would upload everything in the courthouse records that was
excluded from PACER to their own commercial databases. The same content that
would be barred from PACER would still become available through other websites,
but only to those who can afford the higher price.
If
we shift our decision making process away from one that rationally weighs known
costs only against known benefits in accordance with constitutional standards,
then a mere anxiety becomes justification enough for restraint of public
access. Once successful, that argument has a thousand uses. Restraint of select
public court records, without a factual showing that the restraint would
produce any results justifying the surrendering of a public right, sets a dangerous
precedent because it encourages further untested justifications for restrictive
policies that could further erode the publicÕs right of access to court
records.
In
September 2003, the Judicial Conference adopted a privacy policy for court
records that provided the same level of public access to electronic case files
as exists for court records in the courthouse. That policy is well founded in
good constitutional principle and good judgment. More appropriate deterrents
are available to address concerns about retaliation against cooperating
defendants than adopting an overly reactive proposal that stymies the
legitimate uses and expansion of the PACER system, preempts the publicÕs right
of broadest available access and offers only a small benefit that is vastly
disproportional to its own negative consequences. The proposal under
consideration does not seem to recognize the difference between the baby and
the bath water.
Our
judicial system is capable of addressing the problems presented by open access
to the judicial process without resorting to extreme measures. The proper forum
for deciding whether to seal documents or otherwise limit the publicÕs access
to them is the trial court. Only a court can make a case-by-case determination
on the basis of specific findings rather than general assumptions. Only a court can achieve creative,
individual remedies that forge a proper balance between the right of public
access, the rights of the accused, and public safety. The Committee on Court
Administration and Case Management should reject the Executive Offices of the
U.S. AttorneyÕs proposal and continue to include plea agreements not under seal
on PACER.