In two recent pieces (Denny Walsh and Sam Stanton, "Is Secrecy Taking Over the Federal Courts?", Sacramento Bee, 11/20; and Joyce Terhaar,"Do We Want Secrecy in Sacramento's Federal Courts?", Cal Forum, 11/21), the Sacramento Bee has criticized what it characterizes as the EDCA's overly loose policy in sealing plea agreements. It suggests that the practice of sealing plea agreements has become more prevalent here in recent years and that it is often done without adequate justification.
Although I'm all for more transparency, for my two cents, I think the Bee's concerns are overblown. Especially in these days of electronic filing, competent defense attorneys will request that any plea agreement containing a cooperation provision be sealed if their clients may go to prison. In federal prisons, inmates are commonly asked for their charges and plea agreements and, if they don't produce them, others get it off public PACER. "Snitches" face very real dangers in prison. I know of at least two EDCA defendants who were assaulted in prison. While there are always rumors of which inmates have cooperated in jails and prisons, it is the "paperwork" that provides the proof--and the real danger.
With that said, our district's procedures need improvement to better balance the competing interests of safety and public access to court documents. While these may be isolated examples, the Bee has pointed to two instances where plea agreements were sealed where there was no cooperation provision and no apparent reason to do so. At the 2014 EDCA conference criminal law section, I suggested the court adopt the practice of other districts (such as the D. Alaska) where the local rules provide that all plea agreements be publicly filed along with a separately sealed addendum, which either sets forth the parties' cooperation agreement or just says there is no cooperation in this case. This procedure has two advantages. First, there is more transparency; the entire plea agreement is never sealed--only the part detailing the defendant's cooperation (or lack thereof). Second, it prevents those reading dockets to easily decipher which defendants are cooperating--those whose plea agreements are not publicly available.
The Bee reports that steps are already underway to improve our district's procedures for sealing plea agreements. Here's hoping the next amendments will consider changes such as those suggested here.