IE 11 is not supported. For an optimal experience visit our site on another browser.

After Epstein's death, some criminal and civil cases could still continue

Analysis: Plaintiffs in the civil cases also would have preferred Epstein alive and prosecuted, since that could have then led to devastating information to be used in their cases.

The federal prosecution of Jeffrey Epstein ended with his death in custody. But several other cases, claims and investigations will continue.

First of all, if others are being investigated for participating or conspiring in Epstein’s alleged crimes, they may be prosecuted with any evidence the government discovered in its case against Epstein. Any new defendants cannot claim violations of their Fourth Amendment protections against unlawful searches or seizures unless they have their own legitimate expectations of privacy in Epstein’s property — which they probably do not.

On the other hand, the government could have improved its case against his perceived co-conspirators if Epstein himself had cooperated with the government. Now, that’s not an option.

Secondly, the civil cases against Epstein survive his death; they will just be brought against his estate instead of against him. The plaintiffs in the civil cases also would have preferred Epstein alive and prosecuted, since that could have then led to the government’s criminal case producing devastating information to be used in the civil case.

Because of the heightened burden of proof in a criminal case (beyond a reasonable doubt) compared to that in a civil case (preponderance of evidence), a conviction often goes a long way in helping a civil plaintiff hold a defendant liable for the same conduct. Now, that criminal trial will never happen.

Paradoxically, the strongest case may be the third kind: the case by Epstein’s family or survivors against the federal correctional center for failing to prevent his suicide.

While in custody, a pretrial detainee such as Epstein has a 14th Amendment substantive due process right to care, which includes protection from suicide. Corrections officials may be civilly liable for violating Epstein’s due process rights if they were “deliberately indifferent” to the medical need of the detainee to be protected from himself.

"Deliberate indifference" is not an easy standard to meet — it is a mental state more blameworthy than just negligence, closer to criminal recklessness. “Deliberate indifference” shocks the conscience and would mean the detention center wantonly inflicted unnecessary pain.

The plaintiffs would have to prove that federal officials at the Metropolitan Correctional Center acted (or failed to act) in a conscious disregard of a substantial risk of serious harm. Despite Attorney General William Barr’s statement that he is “appalled” by the death of Epstein, simply pointing out what might have been done instead is insufficient to impose civil liability.

Liability depends not on whether the corrections officials did all they could have done, but whether they did all that the U.S. Constitution requires. The facility was aware there was a risk of suicide because they had Epstein on suicide watch days earlier. The question then becomes whether insufficient protective measures were taken by the officers, and whether they were deliberately indifferent to the risk that Epstein could commit suicide.

The peculiar result in this case is that the corrections officials could be civilly liable to Epstein’s representatives for his death, and Epstein’s estate may be civilly liable for harm to Epstein’s accusers.