We will soon read about a Department of Justice initiative to decrease online public access to criminal plea agreements.

I know this because the ABA Section of Litigation sent me an email yesterday, announcing the contents of the January 2008 issue of Litigation News, one part of which will be devoted to the topic of secrecy and access to plea agreements.

Two aspects of this email disturbed me from my academic slumber.

First, I was impressed (read: jealous) that the Section knows this far in advance what it will be talking about next year. I awake in the morning, rarely sure of what I’ll talk about, even when I plan conversations with no one but myself. And (now with this one exception) I certainly have no idea what I will be reading in January.

Second, I am eager to read the Section’s article on the topic. I will watch the Judicial Conference’s response to the DOJ request with even greater interest.

The ADR community has been talking about (and occasionally doing things about) secrecy in the processes of settlement and in the contents of settlement agreements. The arguments for and against the confidentiality that attaches to some forms of settlement, and to the substance of settlements, are well-known. For example, the University of Kansas Law Review published an entire symposium on the topic of “Secrecy and Transparency in Dispute Resolution” in June 2006.

The interesting wrinkle here is not merely that the government is involved, as that is the case in many civil settlements as well. And it is not the fact that a plea agreement of some sort was reached, as that information is also readily available in the civil corollary. And some aspects of the debate apparently mirror that which we see regarding the question of secrecy in civil settlements. (“The government will engage in too many shenanigans if it can do everything secretly.” “The criminal justice system relies on plea agreements, so we need to restrict access to the agreements, so that plea agreements will continue to occur.” Etc.)

That’s not what surprised me about the teaser article included in the Section’s email. But before I say what did surprise me, I have to confess that I am probably atypically easily surprised in this field. I have had far less exposure to the criminal justice system than many. I don’t teach Criminal Law. I have never been arrested. With the exception of once failing in an effort to conduct a “citizen’s arrest” on my then-ten-year-old sister, I’ve been part of neither prosecuting nor defending anyone charged with a crime. I don’t even watch the TV crime shows my students consider de rigueur. So my ignorance runs deep.

With that caveat, I’ll share that as I read the comments submitted to the DOJ proposal to remove PACER access to non-sealed plea agreements, the thing that surprised me most was what is apparently at stake. In the civil context, I am used to litigants wanting to conceal the amount of the settlement. I have some experience with them wanting to protect the confidentiality of precise terms of various compensatory arrangements. And I’m familiar with the efforts many civil litigants make to assure themselves that nothing in the terms of the agreements themselves constitutes an admission of fault. Not so with plea agreements, if these comments are reflective of practitioners’ concerns. Instead, the question is whether outsiders will have information about whether the defendant cooperated.

Cooperation, it seems, is a rather unseemly thing for a defendant to have done, in at least some circles. For example, one commentor wrote, “Some incarcerated clients advise me that they are under tremendous pressure to produce their docket sheet for indications of cooperation.” The basic argument, therefore, is that making evidence of cooperation more readily available will decrease the incentive for cooperation.

Again, my ignorance of criminal law is profound. But I will be most interested to see whether the idea of secrecy in plea agreements receives the same kind of treatment as secrecy in civil settlements.

We should have something interesting to read in January.

Michael Moffitt