Acosta and Bad Plea Deals

I am conflicted about Alexander Acosta’s resignation and the controversy surrounding his decade old plea deal with Jeffry Epstein. On the one hand, I like it when prosecutors are held accountable for their decisions. It happens far too rarely in this country. But, why do we only question when prosecutors give an “easy” or “good” deal? Where is the accountability for prosecutors who use their extraordinary power to squeeze plea deals out of innocent defendants? Or pressure guilty defendants to accept time that far exceeds what the case is worth? Or prosecutors who never give a break to the poor people of color that dominate our criminal justice system?

Epstein got a good deal. Was it an outrageous deal? There is no question that our criminal justice system still treats sexual assaults differently. We still have judges who look at young white men and give them breaks that no young African American man would likely get. For example, the 2016 Stanford rape case where the judge sentenced the young white defendant to six months in jail and probation for raping an unconscious woman. That judge was later voted out of office after a recall campaign due to his sentence in that case. Or, more recently, the New Jersey judge who denied a prosecutor’s request to try as an adult a 16 year old white boy who filmed himself raping a 16 year old (and shared the video) because he was from “a good family” and “had terrific grades.” The judge went on to question whether it was rape (although the defendant titled his video “when your first time having sex was rape”) as there were not two men with a weapon, in an abandoned house. According to this judge, simply “taking advantage of a person” wouldn’t qualify as rape. The appellate court reversed the judge’s decision and his clear bias in favor of the defendant.

When I was a public defender I got some very good deals for my clients on sexual assault cases, some involving children. The reason I got those deals was not due to my stellar negotiating skills or having a powerful and influential client who was getting a break. I got those deals because the prosecutors involved thought they would have a hard time proving the case. I didn’t always agree with that assessment, but I would not disagree with a prosecutor who was questioning the strength of their case. Acosta’s reasons for giving the deal that he did to Epstein is something I have heard before. Sometimes the assessment of whether the evidence is strong is linked to prosecutors not believing the woman  (despite the fact that the same prosecutor would not question a robbery victim’s word).

To me, the bigger question is not whether Epstein got off too leniently, but,  why do we continue to focus on thinking the only appropriate plea bargain or sentence is one involving long periods in prison? Why are we not collectively outraged over long terms in prison for first time offenders (particularly in non-violent cases)? Why are we not collectively outraged that we sentence  children to spend the rest of their lives in prison for offenses committed when they were children?

This tendency to think that a long term in prison is the solution to all of our societal ills is exactly why we have the highest incarceration rates in the world. If we want to seriously reduce our prison population we have to start thinking differently about crime and punishment and not be so quick to assume that the best and only way to deal with crime is long terms in prison. And, we need to start holding prosecutors accountable for bad behavior and bad deals.

I look forward to the day when there is a high profile resignation of a current or former prosecutor who strong-armed too many plea deals involving long terms in prison for poor defendants in drug cases, or who never gave first time offenders a break, or who threatened to add charges or enhancements if defendants rejected plea deals, or who repeatedly failed to turn over exculpatory evidence.  I look forward to our collective outrage for those daily events in our criminal justice system.

4 thoughts on “Acosta and Bad Plea Deals”

  1. Thanks for posting this, Cynthia. It’s so important. And, of course I agree with you. You should do an op ed for WAPO or NYT.
    I’d love your thoughts though on possible unintended consequences if we hold prosecutors accountable for bad deals when we think about the many good prosecutors out there who might feel intimidated by whatever the system becomes for doing this? “Good” deals are necessary, right? Does the public writ large get this?

  2. Our criminal justice system is broken, and believe prosecutors have far too much power. I share your outrage, Cynthia, and look forward to the day when prison is not the default method of punishment, particularly for non-violent/non-predatory crimes.

  3. I think you hit the nail on the head–there is every incentive for prosecutors to be as punitive as they can be in the U.S., especially since most of the time the chief prosecutor is answerable to the voters, who tend (most of the time) to reward punitiveness. As a federal prosecutor Acosta did not have that particular constraint, but as soon as any political calculus enters in, again punitiveness carries the day. I want to emphasize that I don’t think leniency was necessarily justified here. Still, if all the career and political incentives push toward punitiveness, then that’s what we will get. There are other possible values that a procuracy can embrace, like fidelity to the facts or consistency across cases, but prosecutors must have some belief that those goals are right and that they will rewarded for sticking to those values. Thanks for tying the systemic problem to the events of the day.

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