By: Alan M. Dershowitz
The forced resignation of Alex Acosta based on the plea deal that he made with Jeffrey Epstein’s lawyers (of which I was one) may have serious unintended effects on our system of criminal justice. The criticism of Acosta — whether warranted or not — for making the deal will cause other prosecutors to go to trial in relatively weak cases in which the chances of losing are considerable.
The deal accepted by Acosta was based on the weakness of the government’s federal case. In order for sex with underage persons to be prosecuted federally, as distinguished from prosecution by a state, there has to be compelling evidence of an interstate nexus. Merely having sex with underage females in a local context does not constitute a federal crime. In the Epstein case, this would have required credible testimony or documentary evidence proving transportation of underage females in interstate commerce, or the use of interstate communications such as telephone calls, emails, or the wiring of funds. There was scant evidence of such an interstate nexus in the Epstein case at the time the deal was made. Perhaps there is more now, but that remains to be seen.
At the time the deal was made, there was a relatively strong state case in Palm Beach County, but the federal case was chancy, as Acosta said in his statement. A judge might have dismissed the case or a jury may have found against the government.
Instead of taking the chance of losing the case, Acosta did what many prosecutors do: they compromise based on the relative strength of the prosecution and the defense. The compromise in this case was worked out by Acosta’s assistants and then approved by Acosta and higher-ups in the justice department. There were few red flags at the time, but with the benefit of hindsight, Monday morning quarterbacks have piled on Acosta.
This article, however, is not about Acosta. I hold no brief for him. This is about the impact of Acosta’s forced resignation on current and future prosecutors. Consider the situation of a prosecutor today or tomorrow who has a weak federal case involving sexual allegations. He has two options: the first is he can try to make a deal based on the relative strength of his case and of the defense case. But if he makes that deal, he risks criticism for being too soft on sex offenders. His second option is to take the weak case to trial and risk losing. But even if he loses, the risks to him personally are less great because he can blame the loss on the judge or the jury. A deal, on the other hand, is totally attributed to the prosecutor, as evidenced by the Acosta resignation.
So, a simple cost-benefit analysis will incline a prosecutor to litigate rather than settle.
Today, more than 90 percent of federal criminal cases are settled by a plea bargain. This includes sexual assault cases. In the post-Acosta world, those numbers may well go down, especially in sexual assault cases. The inevitable result will be more trials and more acquittals.
It might be argued that the Epstein case is unique and that other prosecutors will still continue to make deals in weak cases. It will be impossible to quantify the impact of the Acosta resignation on current and future cases, but experienced lawyers with whom I have discussed the case — both prosecutors and defense attorneys — worry that the thumb of media and political pressure will be placed on the scales of justice when it comes to the exercise of prosecutorial discretion and the decision to try or settle a case.
There are traditions and guidelines in the Justice Department that mandate that criminal cases should not be brought to trial unless there is a substantial likelihood of a conviction. That is why federal prosecutors have such a high rate of success in litigating cases — over 90%. In the post-Acosta world, prosecutors will bring cases to trial even if the likelihood of a conviction is questionable, as it was in the Epstein case. The result of this change will be more trials, more crowded courtroom dockets and fewer convictions. That is not good for defendants, victims or for the rule of law.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of The Case Against the Democrats Impeaching Trump, Skyhorse Publishing, 2019. He is a Distinguished Senior Fellow at Gatestone Institute.