COOPERATION AGREEMENTS: AN EXCLUSION FROM THE FIRST AMENDMENT RIGHT OF ACCESS

Author: Ryan Waford, Associate Editor

Cooperation agreements are among the most effective prosecutorial tools in criminal litigation.[i] To secure guilty pleas, prosecutors leverage a sentence reduction conditioned upon defendants’ assistance in other cases.[ii] Defendants may disclose incriminating information or testify against more culpable targets in exchange for this leniency.[iii] The mutual incentives from cooperation enhance the appeal of plea-bargaining.[iv] Nearly ninety percent of federal defendants pleaded guilty and evaded trial in 2022.[v] Another 8.2% saw their indicted charges dismissed through the course of litigation.[vi] While plea bargains are routine resolutions in criminal cases, it is often difficult to determine which pleas were induced by cooperation.[vii]

Widespread online access to criminal dockets motivated courts to obscure cooperation agreements.[viii] The emergence of online systems, like Public Access to Court Electronic Records (“PACER”), introduced grave risks for cooperators.[ix] Users weaponized cooperation information to identify, threaten, and harm cooperators for assisting prosecutors.[x] These dangers were specifically exacerbated in prisons.[xi] Inmates typically required newcomers to disprove cooperation before assimilation, [xii], and refusal to present the necessary materials exposed newcomers to harsh abuse.[xiii] Courts thus implemented measures to safeguard such information and prevent retaliation against cooperators.[xiv] The sealing of plea supplements, presentence reports, and other sensitive documents is a commonplace technique in many jurisdictions.[xv] This cooperation information is frequently filed under seal automatically, by motion, or sua sponte.[xvi] Sealing this information, however, raises constitutional concerns.[xvii]

The First Amendment ensures the public’s right to access criminal proceedings and their documents.[xviii] The right of access attaches to judicial records if it is consistent with experience and logic.[xix] The “experience and logic” test asks whether access to the judicial records (1) “have historically been open to the press and general public,” and (2) plays a “significant positive role in the functioning of the particular process in question.”[xx] Satisfied together, these considerations create a presumption of openness.[xxi]

Yet, the right of access is qualified and not absolute.[xxii] Limitations upon access to judicial records are legitimate if they survive constitutional scrutiny.[xxiii] Restrictions defeat the openness presumption if “an overriding interest based on findings…is essential to preserve higher values and is narrowly tailored to serve that interest.”[xxiv] Courts therefore balance the right of access against countervailing interests.[xxv] When there are no reasonable alternatives to protect the government’s interests, the restriction passes constitutional muster.[xxvi]

Access to plea-bargaining documents, including those revealing cooperation, is protected under the First Amendment.[xxvii] Public oversight of criminal proceedings is a longstanding tradition for promoting the fair administration of justice.[xxviii] Pretrial litigation is the essence of criminal adjudication, as most criminal defendants avert trial.[xxix] Access to plea agreements is crucial for public transparency because most convictions arise from guilty pleas.[xxx] Knowledge of cooperation in plea negotiations allows the public to assess the integrity of the judicial process.[xxxi] These well-established considerations support access to cooperation agreements, hence satisfying the “experience and logic” test.[xxxii]

Although cooperation agreements are presumed accessible, local rules that seal these documents are still constitutional.[xxxiii] The obscuration of cooperation serves an overriding interest in improving the safety of cooperators.[xxxiv] Moreover, defendants are more willing to collaborate with prosecutors in investigations if their contributions remain confidential.[xxxv] Sealing cooperation documents is narrowly tailored to achieve these interests.[xxxvi] Redacted documents, by contrast, will only lead other inmates to assume that the removed information showed cooperation.[xxxvii] Instead, identically sealed documents successfully conceal which defendants cooperated.[xxxviii]

As demonstrated, cooperation agreements facilitate criminal adjudication.[xxxix] The public is presumptively entitled to access such information under the First Amendment, [xl], but cooperators’ safety and the reliance upon cooperation for investigations override the public’s right.[xli] Courts therefore seal sensitive documents containing cooperation agreements to preserve these higher values.[xlii] Given its tapered nature, blanketly sealing all criminal documents that could reveal cooperation is a constitutional restriction upon the right of access.[xliii]

[i] Miriam H. Baer, Cooperation’s Cost, 88 Wash. U. L. Rev. 903, 905 (2011).

[ii] Jessica A. Roth, Why Criminal Defendants Cooperate: The Defense Attorney’s Perspective, 117 Nw. U. L. Rev. 1351, 1359 (2023).

[iii] Lucius T. Outlaw III, A Net for a Cooperator’s Leap of Faith: The Due Process Need for Universal Acceptance of Bad Faith Review of Prosecutors’ Substantial Assistance Determinations in Federal Sentencing, 104 Marq. L. Rev. 661, 664 (2021).

[iv] Shana Knizhnik, Note, Failed Snitches and Sentencing Stitches: Substantial Assistance and the Cooperator’s Dilemma, 90 N.Y.U. L. Rev. 1722, 1738 (2015).

[v] John Gramlich, Fewer than 1% of Federal Criminal Defendants were Acquitted in 2022, Pew Research Center (June 14, 2023), http://www.pewresearch.org/short-reads/2023/06/14/fewer-than-1-of-defendants-in-federal-criminal-cases-were-acquitted-in-2022.

[vi] Id.

[vii] See, e.g., N.D. Miss. Crim. R. 49.01.

[viii] Memorandum from the Comm. on Ct. Admin. & Case Mgmt. of the Judicial Conference of the U.S. (June 30, 2016), in Meeting Agenda Book for the Advisory Comm. on Criminal Rules, 243-51 (Sept. 19, 2016), http://www.uscourts.gov/sites/default/files/2016-09-criminal-agenda_book_0.pdf.

[ix] Id. at 243-44.

[x] Id. at 244.

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] E.g., S.D. Ohio Crim. R. 5.2.1.

[xv] E.g., D. Alaska Crim. R. 11.2(e).

[xvi] E.g., W.D. Mich. Crim. R. 49.8(a) (sealing only by motion); N.D. Miss. Crim. R. 49.01 (sealing plea supplements automatically); S.D. Ohio Crim. R. 5.2.1 (sealing documents upon leave of court).

[xvii] See, e.g., United States v. Doe, 870 F.3d 991, 997 (9th Cir. 2017).

[xviii] United States v. Bus. of the Custer Battlefield Museum, 658 F.3d 1188, 1192 (9th Cir. 2011) (quoting Press-Enter. Co. v. Superior Ct., 478 U.S. 1, 8 (1986)).

[xix] Courthouse News Serv. v. New Mexico Admin. Office of the Courts, 53 F.4th 1245, 1264 (10th Cir. 2022) (citing Press-Enter. Co., 478 U.S. at 8-9).

[xx] Id. (quoting Press-Enter. Co., 478 U.S. at 8-9).

[xxi] See id. (quoting Press-Enter. Co., 478 U.S. at 8-9).

[xxii] United States v. Doe, 962 F.3d 139, 145 (4th Cir. 2020) (citing Am. Civil Liberties Union v. Holder, 673 F.3d 245, 252 (4th Cir. 2011)).

[xxiii] See Press-Enter. Co. v. Superior Ct., 478 U.S. 1, 9 (1986) (quoting Press-Enter. Co., v. Superior Ct., 464 U.S. 501, 510 (1984)).

[xxiv] Id. (quoting Press-Enter. Co., 464 U.S. at 510).

[xxv] Courthouse News Serv. v. New Mexico Admin. Office of the Courts, 53 F.4th 1245, 1264 (10th Cir. 2022) (citing Press-Enter. Co., 478 U.S. at 9)).

[xxvi] See id. at 1270 (citing Courthouse News Serv. v. Planet, 947 F.3d 581, 596 (9th Cir. 2020)).

[xxvii] United States v. Dejournett, 817 F.3d 479, 484-85 (6th Cir. 2016).

[xxviii] See id.

[xxix] Id. (citing Lafler v. Cooper, 566 U.S. 156, 170 (2012)).

[xxx] Id.

[xxxi] Id. at 485.

[xxxii] See Press-Enter. Co. v. Superior Ct., 478 U.S. 1, 8-9 (1986).

[xxxiii] E.g., United States v. Kincaide, No. 3:22-cr-115-DJH, 2023 U.S. Dist. LEXIS 139561, at *18-19 (W.D. Ky. Aug. 10, 2023).

[xxxiv] United States v. Doe, 962 F.3d 139, 148 (4th Cir. 2020).

[xxxv] United States v. Kincaide, No. 3:22-cr-115-DJH, 2023 U.S. Dist. LEXIS 139561, at *12 (W.D. Ky. Aug. 10, 2023).

[xxxvi] See United States v. Doe, 962 F.3d 139, 148 (4th Cir. 2020).

[xxxvii] Id. at 153.

[xxxviii] See id.

[xxxix] See id. at 142.

[xl] United States v. Dejournett, 817 F.3d 479, 485 (6th Cir. 2016).

[xli] Doe, 962 F.3d at 148.

[xlii] Press-Enter. Co. v. Superior Ct., 478 U.S. 1, 9 (1986).

[xliii] See id.