If it is formally determined after Sunday’s autopsy that Jeffrey Epstein died at his own hand, the U.S. government may be on the hook to Epstein’s estate for the prison system’s lethal negligence as Attorney General William Barr and the Federal Bureau of Prisons are making the GOP’s reputation for law and order look more like something out of Jimmy Breslin’s The Gang That Couldn’t Shoot Straight.
On Monday morning, Epstein’s estate received a major boost from Barr. At a police conference in New Orleans, he copped to the Bureau of Prisons—overseen by his Department of Justice—running a sloppy ship at the Metropolitan Correctional Center in Manhattan, Epstein’s last home. “We are now learning of serious irregularities at this facility that are deeply concerning and demand a thorough investigation," he said.
That is big news.
It sounds awfully like a damning admission, one that stands to haunt the government if Epstein’s estate takes the government to court under a law known as the Federal Tort Claims Act (FTCA), which permits the family of a prisoner who dies in federal custody to assert a claim against the government where the government didn’t do what it was obligated to do: protecting a suicidal prisoner from self-harm.
The FTCA’s language is dense, but the law generally provides that the federal courts possess jurisdiction on claims brought against the government for “death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment ….” In other words, just because someone is behind bars doesn’t mean that they are stripped of all of their rights. People aren’t cattle.
For example, in June 1973, just months after Richard Nixon’s landslide reelection and before the impeachment investigation kicked into high gear, the Supreme Court unanimously held that the government was potentially liable under the FTCA for the alleged actions of a deputy U.S. marshal after a prisoner who had previously attempted suicide finally succeeded.
According to the record, the district court had found that prison was aware of the dead man’s “suicidal tendencies” and as a result “should have made specific arrangements... for constant surveillance of the prisoner.” In the lower court’s view, “its failure to do so was negligence.” The Supreme Court remanded the case back for further review of this very point.
All that was written by the late William Rehnquist, a Nixon appointee, who, like Barr, had previously served as assistant attorney general in the Office of Legal Counsel.
More recently, Paul Crotty, a federal judge sitting in lower Manhattan, refused to dismiss an FTCA suit brought by the family of a man who died while in ICE’s custody. Citing Rehnquist’s earlier decision, Crotty found that plaintiff had alleged a legally cognizable case. In Crotty’s words, “The government can delegate its duties, but it cannot simply abdicate its responsibilities for undelegated duties.”
To be sure, Crotty is not a judge known to be blinded by political partisanship. By way of background, Bush 43 appointed him to the bench after he had previously served in the administration of Mayor Ed Koch and as New York City’s chief lawyer under Mayor David Dinkins.
So if the officers at the federally owned and operated MCC were simply asleep at the wheel when Epstein killed himself, Epstein’s heirs may see a payday.
Or maybe—and thankfully—not.
Any recovery eventually due Epstein’s estate—and notably, his representatives sent a pathologist to observe the autopsy conducted by the New York City medical examiner, who has yet to issue an official determination— might be detoured to his multiple victims, who received a recent boost from New York’s Governor Andrew Cuomo and the newly Democratic state legislature. Together, they expanded the statute of limitations on sex crimes.
Under the Child Victims Act, the state’s criminal deadline for prosecution will be extended by five years, until their victims turn 28 in felony cases, and until civil plaintiffs turn 55. And for a one-year window, all victims would have an opportunity to file suit, no matter how long ago they were abused. The law goes into effect this coming Wednesday.
It is safe to say that the Epstein estate—and Epstein’s alleged enablers, who could still be hit with criminal charges in New York under the new law’s provisions—can’t be smiling.
The statue provides a shot in the arm to local prosecutors, even as Southern U.S. Attorney Geoffrey Berman, who charged Epstein in June, pointedly said, “To those brave young women who have already come forward and to the many others who have yet to do so, let me reiterate that we remain committed to standing for you, and our investigation of the conduct charged in the Indictment—which included a conspiracy count—remains ongoing.”