For law enforcement officials, the first rule of dealing with victims of crime is to avoid re-victimizing them. In the case of Jeffrey Epstein, the Department of Justice failed.
Epstein, the wealthy financier who was charged with sex trafficking of underage girls, was found dead in his New York jail cell early Saturday morning in what Attorney General William Barr called “an apparent suicide.”
His death occurred even though he had been on suicide watch for six days in July after he had been found in his cell unconscious with bruises around his neck, after a possible attempt to take his own life. A judge had found that Epstein was a risk of flight and a danger to the community, and ordered him detained while he awaited trial on federal charges in the Southern District of New York.
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It is tempting to frame Epstein’s death as just deserts, a likely self-inflicted death sentence for a particularly egregious crime, but it is an affront to justice in many ways. The federal Bureau of Prisons, part of DOJ, owes a duty of care to individuals in its custody. No matter how heinous the charges, criminal defendants are presumed innocent, and are to be protected from harm, even from themselves. Early reports indicate that Epstein was not on suicide watch at the time of his death, and BOP protocol permits a detainee to be removed from suicide watch only after a face-to-face interview with the suicide prevention program coordinator, usually a psychologist, or his designee. Even so, guards reportedly were required to check on Epstein every 30 minutes, and reportedly failed to do so on the night of his death.
Barr has indicated that he has assigned the Inspector General and the FBI to investigate Epstein’s death. The Inspector General’s role would be to determine whether internal procedures were followed, and, if so, whether they are adequate to protect detainees from suicide or should be modified. The FBI, on the other hand, investigates crimes. In prisons, the crimes the FBI investigates are usually assaults and smuggling of contraband, but the scope of its investigative authority is broader, including potential violations of civil rights, such as excessive force under color of law, and corruption, such as acceptance of bribes by public officials in exchange for an official act. To date, there has been no indication of any evidence of foul play.
But the real victims in Epstein’s death are the girls who survived the trafficking crimes, and they are the ones who have suffered the greatest injustice. According to the indictment, Epstein sexually exploited and abused “dozens” of minor victims between 2002 and 2005 by enticing them to engage in sex acts for money. They already were denied their rights to notice under the Crime Victims’ Rights Act in 2008 when Alex Acosta, then the U.S. Attorney for the Southern District of Florida, entered into a plea agreement with Epstein that resulted in a state sentence of 13 months in prison, mostly on work-release to his own office. The controversy surrounding the plea deal cost Acosta his job as Labor Secretary earlier this summer.
The victims will now again lose their day in court in the criminal case, where Epstein would have either stood trial or entered a guilty plea. If he were convicted, he would have faced a sentencing hearing, where the survivors would have had the opportunity to provide victim impact statements. As we saw in the case against Larry Nassar, the USA Gymnastics and Michigan State University doctor who was convicted of sexually assaulting hundreds of young gymnasts and other athletes, confronting one’s assailant can be a cathartic moment for victims and an important step toward healing. Epstein’s victims will no longer get that opportunity.
In addition to providing victim impact statements, victims of crime also are often eligible for restitution, monetary payments that they can use to pay for psychological treatment. Upon the death of Epstein, the charges against him must be dismissed. With no defendant, there is no case. Geoffrey Berman, the U.S. Attorney for the Southern District of New York, issued a statement vowing to continue with the investigation into other possible perpetrators, emphasizing that the indictment included a conspiracy count. As alleged in the indictment, Epstein worked with “employees and associates” to exploit his victims. Any other defendants who are ultimately convicted could be ordered to pay restitution to victims, but Epstein’s deep pockets are no longer susceptible to an order of restitution in the criminal case.
Instead of relying on the criminal justice process, victims will now be required to hire their own lawyers and bring their own civil cases if they want to seek money damages against Epstein’s estate. Such cases likely will take time to unfold, and will be stayed during the pendency of related criminal cases if charges are filed.
In addition, the ability to hold accountable the employees and associates described in the indictment has been diminished with the loss of Epstein. If any such defendants are charged and go to trial, they will have the advantage of pointing to the empty chair where Epstein would have sat if he were still alive, and paint him as the more culpable defendant. Their relative liability will likely pale in comparison to that of Epstein.
And, of course, prosecutors have lost any opportunity to use Epstein as a cooperator who could identify other individuals who joined him in procuring girls for sex. The sex trafficking statute includes as prohibited conduct “patroniz(ing)” minors in commercial sex acts. The plea agreement Epstein entered with Acosta contained a highly unusual provision that granted immunity for “any potential co-conspirators.”
Epstein’s knowledge about those co-conspirators will go with him to his grave.
