The reversal of Bill Cosby’s sexual assault conviction shocked people across the country, and Cosby’s release after serving several years in prison leaves no one—defendants, victims, or the public—well-served. While some have criticized the Pennsylvania Supreme Court’s decision, we agree with those who say the fault lies primarily with former Montgomery County district attorney Bruce Castor and, more broadly, the unequal distribution and lack of transparency in nonprosecution agreements and prosecutorial declination decisions.
The Cosby case once again demonstrates that the prosecutor is at her most powerful when she declines to exercise her power to seek criminal charges. Courts have repeatedly held that the prosecutor’s decision not to prosecute a defendant is largely unreviewable. That means that most of the time, we will only have the political process to rely on to constrain nonprosecution decisions. But the political process doesn’t mean much if the prosecutor operates in darkness.
In the wake of this case, Castor has insisted that he never entered into a nonprosecution agreement with Cosby; but as he was making that decision, he nonetheless informed Cosby’s attorney that he would issue a press release announcing his office’s intentions to forego prosecution and he spoke plainly with Cosby’s attorney about the pending civil proceeding that was on the horizon. Castor believed his definitive stance would ensure Cosby’s participation in subsequent civil proceedings. With criminal prosecution off the table, Cosby would have no cause to invoke his Fifth Amendment privilege against self-incrimination.
To a third-party observer, this arrangement certainly sounds like an agreement. But Castor declined to label it as such, and even worse, he failed to memorialize it in a manner that preserved the parties’ intentions. As a result, Castor’s negotiations came back to haunt him when a new district attorney announced her intention to move forward with Cosby’s prosecution. To the Pennsylvania Supreme Court, this decision set in motion the trial that would effectively violate Cosby’s constitutional rights. It was one thing for a new prosecutor to view the facts differently from her predecessor. But it was quite another for the DA’s office not to abide by the representations that had induced Cosby to relinquish his Fifth Amendment rights.
The Cosby case highlights how infrequent formal nonprosecutions agreements are outside of the corporate and white-collar contexts (which raise their own issues), and how unfairly distributed they can often be. We are hard pressed to think of nonprosecution agreements for sexual assault and other serious or violent crimes—except of course for Jeffrey Epstein, who received such an agreement for sex-trafficking charges from former U.S. Attorney and Secretary of Labor Alex Acosta. The vast majority of defendants in these and less serious cases—disproportionately low-income and people of color—never receive any such opportunity.
Prosecutors enjoy the discretion to decline prosecution, but how the prosecutor conveys a declination of charges matters as much as the bare fact of a declination. The Cosby case further shows why prosecutors should be careful to document their declination decisions in writing. Indeed, given the circumstances, we believe Castor should have made his intentions clear to all affected parties before he finalized and memorialized such an agreement. Had he done so, we almost certainly would not be where we are today.
To his credit, Bruce Castor eventually advised the subsequent DA of his conversations with Cosby’s criminal attorneys. Had Castor not issued a press release describing his declination of charges, Cosby likely would have invoked his Fifth Amendment rights in civil proceedings. But Castor did his own office and the public a great disservice. The scope of immunity he intended to confer—complete “transactional” immunity for all related crimes or merely “use and derivative use” immunity for the statements Cosby made during the civil case—remained unclear, as did the nature of the conversations he conducted with Cosby’s attorney. The public was unaware of Castor’s full intentions, as were the civil attorneys representing Cosby’s victims.
Moreover, because none of this was in writing (other than a much-analyzed press release), the defendant remained wholly dependent on the prosecutor to advise later prosecutors of what had transpired. Cosby’s original defense attorney—the one who reached this understanding (but not an agreement!) with DA Castor—had died by the time the new DA revived the prosecution. Imagine for a moment the defendant in question wasn’t someone as powerful or wealthy as Bill Cosby. Would we want any defendant to rely on a former prosecutor’s memory as to what transpired?
What’s worse, when the district attorney’s office fails to act in a transparent manner, especially as to historically underprosecuted crimes such as sexual assault, it undermines its own legitimacy and the public’s trust in the criminal justice system. Consider Justice Kevin Dougherty’s concurring and dissenting opinion, which was also joined by Chief Justice Max Baer. (Editor’s note: Judge Max Baer is no relation to author Miriam Baer.) Justice Dougherty’s opinion speculates in a footnote that Castor’s decision may have rested on undisclosed abuses of power, given Castor’s “shifting” explanations of what he intended. To be sure, the opinion cites no specific evidence of a corrupt motive or deal. But the fact that two jurists on Pennsylvania’s highest court have publicly entertained such a thought is instructive. Opaque processes damage far more than the single prosecution. They undermine the integrity and trustworthiness of the prosecutor’s office and weaken the criminal justice system. Prosecutors’ offices should learn from this episode, lest they fall into the same traps.
We should also be cognizant of the “facts” that led Castor to decline prosecution in the first place. According to the court’s opinion, the major impetus for Castor’s decision was not just that he thought a conviction would be hard to win—something that can be true in many acquaintance-rape cases due to the lack of physical evidence and eyewitnesses—but also because he deemed Cosby accuser Andrea Constand “uncredible” and “unreliable.” Even more problematic is a quote Castor purportedly made to the press at the time that, while the state would charge people for “criminal conduct,” it would not charge “people with making a mistake or doing something foolish.” Statements like these illustrate harmful prosecutorial gatekeeping of sexual assault, particularly for women who are deemed “imperfect” victims.
We strongly agree that prosecutors should refrain from pursuing cases where the evidence is lacking. But there is no good reason for failing to transparently document a prosecutor’s assurances of nonprosecution when those assurances are designed to induce a defendant to relinquish her constitutional rights. Whether a prosecutor calls it an “agreement” or not, she should create and preserve a crystal-clear record that explains what she is doing and why. Especially in prosecutions such as this one, she should seek the input of her peers and of affected victims and stakeholders. If she isn’t comfortable with this level of deliberation and transparency, she might want to ask herself why. Given the high stakes for defendants, victims, and the public, prosecutorial power—to charge or not charge—can only serve the public good if it is carefully and transparently exercised and consistently and fulsomely documented.