STEVE INSKEEP, HOST:
How unusual was the plea agreement for Jeffrey Epstein? The financier indicted this week for sexually abusing dozens of minors was prosecuted once before. More than a decade ago, he pleaded guilty to a Florida charge of soliciting prostitution from someone who was underage, but he avoided a federal conviction through a non-prosecution agreement. And while he did spend 13 months in prison, he was allowed to leave almost daily. The plea deal has drawn even more attention because the U.S. attorney at the time, Alex Acosta, is now the U.S. secretary of labor.
Let's discuss this with Berit Berger, a former assistant U.S. attorney in New York. Welcome to the program.
BERIT BERGER: Thanks. Happy to be here.
INSKEEP: How common are non-prosecution agreements of this sort?
BERGER: So non-prosecution agreements are fairly common within the Department of Justice. A non-prosecution agreement is really just a contractual agreement between, for example, a U.S. attorney's office and a party, that allows them to resolve their case without actually having to plead guilty to any criminal charges. However (laughter)...
INSKEEP: OK, so the idea is you avoid a lengthy trial. You avoid a lot of state expense. Maybe it's not that serious a crime. The person still does something that seems like a punishment. But you just said however.
BERGER: Exactly. However - and it's a very big however - these kind of non-prosecution agreements for a child sex trafficking case like this are not common at all; in fact, I would say they're almost unheard of. So, for example, if there was evidence that somebody had committed child sex trafficking now and that case was charged, those charges would carry a mandatory minimum sentence of around 10 years, possibly even 15 years, depending on the age of the child who was trafficked. So this is not the kind of case that usually is resolved with a non-prosecution agreement; in fact, it's usually resolved with at least a decade in jail.
INSKEEP: Non-prosecution agreements tend to be for things like - I don't know - public drunkenness or drug addiction that didn't harm anybody but the person involved, right?
BERGER: Possibly. They're often used for - in white-collar crimes, for example, like a company, if the company is then going to cooperate with investigators. Perhaps they would be used if somebody was a very minor player in a criminal scheme, they may be offered this. They are almost never used for somebody that was the mastermind or the key player in a criminal scheme, especially one that involves human trafficking or sex trafficking.
INSKEEP: Is this even more unusual because we now know there were dozens of people who described themselves as victims who prosecutors apparently didn't - I don't know - didn't look for, didn't seem to find, didn't take into account in any event at the time?
BERGER: That's right. So that all goes to the strength of the government's potential case. This was not a situation where it seems like this was a weak case that was very borderline to bring. In a sex trafficking case, you're lucky, quite frankly, as a prosecutor, if you have dozens of victims because it means the story is then corroborated by a number of different people.
These are incredibly different - difficult cases to bring, period. Oftentimes, it's, you know, only two people in a room when some sort of sexual abuse takes place, and oftentimes, prosecutors are forced to bring sex trafficking cases where there may only be one victim. So if an investigation reveals that there are dozens of victims who all have similar stories pointing the finger at one person, that makes it an incredibly strong case and makes it even more surprising that the prosecutors in this situation chose to walk away from it.
INSKEEP: Very briefly - we do know, as you said, that it's very difficult to prosecute these cases. Could there be some kind of justification there for Alex Acosta, simply saying, well, that's a he said, she said case, and it's going to be hard for me to make this at trial?
BERGER: He may say that, but I don't buy it, quite frankly. They are difficult cases, but that doesn't mean that they shouldn't be brought. If that was the case, we would never be able to bring these kind of sex trafficking cases, and we know that they are brought in every district around the country. Unfortunately, they're all too common, and they are an incredibly high priority for the Department of Justice. So I don't think it'll be a very successful defense.
INSKEEP: Ms. Berger, thanks for the insight. Appreciate it.
INSKEEP: Berit Berger is a former assistant U.S. attorney in New York. Transcript provided by NPR, Copyright NPR.