“A Tale of National Disgrace”: Applying the Doctrine of Unconscionability to Establish the Impermissibility of Secret Non-Prosecution Agreements

Authors

Denna Fraley

Abstract

Crime victims are directly harmed by crime and therefore have a stake in, and should be treated as individual participants in the criminal justice process. In recognition of this, Congress passed the Crime Victims’ Rights Act (“CVRA”) in 2004 to enumerate specific rights afforded to crime victims, including the rights to confer with the prosecutor in the case, to be heard at public court proceedings involving a plea or sentencing, to be informed in a timely manner of a plea bargain or deferred prosecution agreement, and to be treated with fairness and respect. Whether the CVRA extends these rights to victims prior to the formal filing of charges is unclear, but since a great deal of criminal cases never lead to charges being filed, many victims are not protected if these rights are not afforded to them during the investigation stage. The consequences of this ambiguity are exemplified by the now infamous 2007 secret non-prosecution agreement (“NPA”) between Jeffrey Epstein and the United States Attorney’s Office for the Southern District of Florida (“USAO,”) in which the USAO agreed to forego federal prosecution of Epstein for sexually abusing more than thirty minor girls in exchange for Epstein pleading guilty to two minor state charges. The existence of the NPA was kept secret from Epstein’s victims for over a year after it was signed. Although the victims subsequently commenced litigation seeking rescission of the NPA on the grounds that the USAO violated their CVRA rights when it concealed the agreement, they were denied the relief they sought. The Eleventh Circuit Court of Appeals ultimately held that since the government never filed federal charges, the victims did not have standing to sue. Accordingly, the secret NPA deprived Epstein’s victims of their CVRA rights and of the opportunity see Epstein held accountable for his criminal conduct. This Note applies the contract doctrine of unconscionability to NPAs entered into in the absence of victim notification and consultation. It argues that principles of unconscionability are inherent in secret NPAs, and thus such agreements should be deemed unenforceable and subject to rescission. To this end, Congress must amend the CVRA to strengthen protections for crime victims and make clear that those protections attach prior to the filing of formal charges. Doing so would ensure that the disgraceful outcome of the Epstein case is not repeated.

Recommended Citation

Denna Fraley, “A Tale of National Disgrace”: Applying the Doctrine of Unconscionability to Establish the Impermissibility of Secret Non-Prosecution Agreements, 32 J. L. & Pol'y 118 (2024).
Available at: https://brooklynworks.brooklaw.edu/jlp/vol32/iss2/4