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In my previous post, I detailed the growing pressure on federal judges to disguise the sentencing process so that cooperation is invisible. Now I address the obvious but difficult-to-answer question: What’s to be done?

What is to be done?
In its unpublished interim report some months ago, the Task Force on Protecting Cooperators focused its first recommendations on corrective activity by the Bureau of Prisons, because that is where the problem of violence primarily lies. As a result, the director of the Administrative Office of the U.S. Courts made a number of proposals to the BOP that are not yet public. In its unpublished final report, the task force suggested alterations to electronic case filing procedures that would create new electronic “folders” for documents related to pleas and sentencings.

Remote access to those folders generally would be unavailable to laypeople; instead, a courthouse visit would be necessary to see them, hopefully discouraging some malevolent scrutiny. And even then, access would be denied to particular documents that a judge had sealed. But the task force is not recommending changes to the varying courtroom practices federal judges now employ, and the federal rules committees have rejected the request to alter the criminal rules.

Notwithstanding task force recommendations, protecting cooperators will be a difficult challenge for the BOP with its limited resources. Making plea and sentencing documents unavailable remotely will make it harder, but not impossible, for prisoners to figure out who cooperated. Should the federal judiciary therefore be enlisted, or should individual judges and districts go farther, as some are doing now, by keeping the fact of cooperation and its effect on federal sentences secret or disguised?

Judge D. Brock Hornby

The answer, I say, is no.

Transparency is paramount to the federal judicial role. England’s notorious 17th-century Star Chamber discredited the respectability of secret judicial proceedings forever. The U.S. Supreme Court in Globe Newspaper Co. v. Superior Court said the press and the general public have a First Amendment “constitutional right of access to criminal trials,” and that underlying that First Amendment right is “the common understanding that ‘a major purpose of that amendment was to protect the free discussion of governmental affairs’ ” and “to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government.”

With respect to criminal sentencing, Congress has specified that federal judges “at the time of sentencing, shall state in open court the reasons” for imposing a particular sentence. The Supreme Court in Rita v. United States explained Congress’s open-court sentencing requirement as follows: “A public statement of those reasons helps provide the public with the assurance that creates [the public’s trust in the judicial institution].” It “not only assures reviewing courts (and the public) that the sentencing process is a reasoned process but also helps that process evolve” by providing that information to others. The American Law Institute’s recently revised Model Penal Code advances similar reasons for sentencing transparency, among them the need to communicate the sentencing judge’s reasoning to others in the sentencing system (including other judges), and “to enhance the legitimacy of the sentencing process in the eyes of the offender, the victim and the public.”

The U.S. Sentencing Commission recognizes that Congress requires the sentencing judge to state the reasons for reducing a sentence for substantial assistance. But it asserts in guideline 5K1.1’s background that a “court may elect to provide its reasons to the defendant in camera and in writing under seal for the safety of the defendant or to avoid disclosure of an ongoing investigation.” It is difficult to square the commission’s broad permission to hide a cooperation-driven reduction with Congress’s open-court language and the powerful arguments for public transparency.

But regardless, explaining the sentencing in writing under seal should be the truly exceptional case; for all other cases, closing the courtroom for part of the sentencing rationale should be off the table. So, too, should a judicial explanation delivered at sidebar or in chambers, or a sealed transcript of what the judge said; these are poorly disguised attempts to avoid Congress’s open-court mandate.

We cannot be confident that sealed sidebars or chambers conferences will even solve the prison retaliation issue. It is impossible to eliminate all cooperation information because there are so many other available sources—for example, cooperation implications drawn from recurrent delays in sentencing a particular defendant; a reduced charge in a conspiracy; general or specific knowledge among co-defendants, their families and associates; materials about a witness that a statute or the Constitution requires be provided to a defendant; a cooperator’s testimony at a trial or sentencing hearing. The list goes on. The value of judicial transparency should not be sacrificed to a goal whose achievability is so dubious.

If the federal judiciary is indeed to retreat from transparency and pursue secrecy or disguise for cooperation-driven sentences, I say that policy should be created not by individual judges, judicial districts, the administrative office or the Judicial Conference of the United States but through a process that invites public comment and criticism—for example, through congressional legislation subject to public debate (and judicial review for constitutionality) or through rules amendments that are subject to outside input and public hearings. (So far, the rules committees have declined the secrecy proposals.)

Some have suggested it is acceptable to hide the role of cooperation in individual sentences as long as the U.S. Sentencing Commission makes aggregate data available. I disagree. Victims are entitled to know why judges sentence the way they do in the particular case. The public (that means all affected communities, including, for example, minority groups) is entitled to monitor the appropriateness of the sentence in individual cases—assessing the justice of the punishment and the behavior of the judges and prosecutors.

Lawyers for other defendants have to know the judges’ and prosecutors’ sentencing rationales, so that they can effectively argue for proportionality for their particular clients. Without that information, prosecutors and judges know how cooperation has affected various sentences—a knowledge that may well affect the next sentence—but defense counsel does not know unless they were counsel in the previous sentences. That is simply unfair.

Now I do not mean to suggest that the specifics of cooperation or the existence of ongoing cooperation always have to be disclosed. That information appears in materials that the lawyers file or things they say to the judge. If there is a strong countervailing interest, federal appellate cases permit some sealing of such materials for a limited time on a case-by-case basis. (I have granted such motions.)

Importantly, however, protecting those specifics is distinct from the demand to disguise the judge’s sentencing rationale explaining that cooperation did in fact affect the sentence. Federal judges should candidly and honestly pronounce their sentencing reasoning in open court, including the fact (if not the extent or details) of cooperation and the effect it has on the sentence length. Sidebars and chambers conferences do not suffice. Cooperation’s role should not be hidden; we must not deceive the public by misleading docket entries or disguised transcript redaction. Would we tolerate secrecy about cooperation if a presidential adviser was being sentenced?

Let me be clear: No federal judge wants to be responsible for the death or assault of a sentenced defendant who cooperated. The judge has determined the offender’s punishment, and it does not include violence in prison. But the judge’s role is limited. The judge cannot determine the facility that the BOP will select for a particular defendant and the resulting risks. The judge cannot disguise the nature of the crime of conviction—for example, a crime such as child molesting that might provoke violence against the offender in prison. The judge cannot ensure the adequacy of prison medical care. These and other consequences are all outside the federal judiciary’s role.

What the judge can do—must do—is preserve the American public’s trust in the integrity and transparency of the federal judicial system. Americans are entitled to know the role that cooperation plays in federal criminal law and sentencing. If the threat of violence deters some defendants from cooperating, then the Justice Department must deal with that consequence in evaluating how it prosecutes cases, or it must find the resources and the way to help the BOP do its job of making prisoners—including cooperating prisoners—safe.

At the end of the day, encouraging or discouraging cooperation is not the business of federal judges. That is the executive branch’s role. Judges constitute an independent branch of government with distinctive responsibilities. Our charge is to sentence convicted defendants fairly, based on all the facts and circumstances and the law, and to explain as clearly as possible to the public, the defendant and the victims how we reach the sentence we pronounce.

As some of us say, a sentencing proceeding is a community morality play in which society’s values are publicly applied and affirmed. We should not let the violence of prisoners—even a violence that the BOP apparently cannot control—drive federal sentencing underground.

Judge D. Brock Hornby, a federal district judge in Maine, served as chief judge from 1996 to 2003 and took senior status in 2010. He is an emeritus member of the council of the American Law Institute and has served on the U.S. Judicial Conference and its executive committee. He has taught judges and lawyers in many countries. He received the 27th Annual Edward J. Devitt Distinguished Service to Justice Award at the U.S. Supreme Court in 2009. In his spare time, Hornby writes “Fables in Law” that are published in the Green Bag.

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