Court-Sealed Documents

American courts, by tradition and for all the obvious reasons, reflexively tilt in a direction that favors public access to judicial records. As such, the law of sealing is "famously strict, at least on paper." In most Circuits, a trial court can grant a party’s motion to seal only if the party can demonstrate a compelling interest favoring secrecy. Moreover, a district court must articulate the basis for a decision to seal a document.

In [Sealed Document]: An Empirical Study of Sealing Orders in the Federal Courts, Nora Freeman Engstrom (Stanford) et al. bring data to how the law of sealing operates "on the ground." What they find, based on data from over 2 million federal civil cases, challenges the notion that sealing practices are operating as designed. Figure 3 (below) illustrates that among cases that reach summary judgment approximately 10% included at least one court-sealed document. To be sure, however, assessments of whether a 10% figure comports with a "famously strict" threshold are necessarily subjective. An excerpted abstract follows Figure 3.

Charging "Handoffs" Between Police and Prosecutors

While prosecutorial charging decisions occupy a central position in the American criminal legal system, data access has severely constrained related empirical research. In a recent paper, The Police-Prosecutor Charging Decision, Shima Baradaran Baughman et al. (BYU) report initial descriptive results that benefit from "rare" 2019 charging data from a single (anonymous) "mid-sized" U.S. county. 

Specifically, the data include a "random sample of 414 unique cases files and 1340 charges [from 2019]. For every charge, the dataset links three decision points: (1) the offense(s) recommended by the arresting agency, (2) the offense(s) the prosecutor filed, and (3) the disposition for that charge, indicating how the case was concluded whether by plea agreement, dismissal, a guilty verdict of the original charge, or a guilty verdict of a lesser charge.” Linking police-recommended charges, prosecutor-filed charges, and charge-level dispositions within the same cases provides an unusual glimpse into the critical arrest-to-filing transition.

One Local Prosecutor "Paradox"

In many ways, local prosecutors perform often critical roles in the nation's criminal justice system. While a recent, albeit small, surge of "reform" prosecutors already shows signs of abating, their emergence emphasizes a paradox. As Joshua Boston (BGSU--poli sci) et al. note in their recent paper, The Prosecutor Paradox: Understanding the Public’s Low Knowledge About Chief Local Prosecutors, despite the considerable discretion afforded to local prosecutors too often voters know very little about them. Moreover, prosecutors' enormous electoral incumbency advantage only compounds problems incident to voter information deficits. While Boston et al. engage survey data to make their case, one key finding includes: "Our data – viewed in concert with existing scholarly evidence on prosecutorial elections and in the context of our motivating examples above – suggest that prosecutorial elections are not effective in providing accountability in most cases." The paper's abstract follows.