There’s A Line Between Justice And Vengeance. Larry Nassar’s Judge Crossed It.

Rosemarie Aquilina, the judge who presided over the astounding sentencing hearing of former USA Gymnastics team doctor Larry Nassar this month, has emerged as a heroine for victims of sexual assault.

Her decision to allow 156 women and girls to address their alleged abuser in court, with their emotional testimony streamed live across the nation, created an invaluable opportunity for catharsis, and directed vital attention to what is likely the worst sex abuse scandal in U.S. sports history. 

But Aquilina’s manner during sentencing, in which she said she was honored to sentence Nassar to die in prison and suggested he deserved to be sexually assaulted himself, has raised questions about whether she overstepped her role as an impartial arbiter of justice.

It is not unusual for judges to use emotional language during sentencing, or to offer their frank opinion about what a heinous person they believe the defendant to be, based on their criminal conduct. That’s not inconsistent with impartiality, so long as the judge’s opinion is drawn from the relevant facts in the case, and not extraneous factors, such as the race of a defendant.

In 2013, when Judge Michael Russo gave Ariel Castro ― who kidnapped and sexually assaulted three women ― a sentence of life without parole plus 1,000 years in prison, he told Castro his crimes were so serious that he should never live among the general public again. “You don’t deserve to be out in our community,” Russo said. “You’re too dangerous.”

Judge John Cleland, who in 2012 sentenced Penn State football coach Jerry Sandusky to 30 to 60 years in prison for sexually abusing 10 boys, said that because of Sandusky’s age, he would be in prison for the rest of his life. “You abused the trust of those who trusted you. These are not crimes against strangers, they are much worse,” Cleland said. “The crime is not only what you did to their bodies, but your assault to the safety and well-being of the community in which we all live.”

But Aquilina’s remarks were unusual in how fiercely she championed the victims over the four-day sentencing hearing, emerging more as an advocate than a dispassionate judge.

“It is my honor and privilege to sentence you, because, sir, you do not deserve to walk outside of a prison ever again,” she told Nassar on Wednesday as she sent him to prison for 40 to 175 years. “I’ve just signed your death warrant.” She also went so far as to suggest that he deserved to experience the pain of sexual abuse himself.

On the first day of the hearing, she mused about allowing “many people” to sexually assault Nassar if she were permitted to.

“Our Constitution does not allow for cruel and unusual punishment,” she said. “If it did, I have to say, I might allow what he did to all of these beautiful souls ― these young women in their childhood ― I would allow some or many people to do to him what he did to others.”

Nassar’s case comes at a unique and fraught moment, which might explain Aquilina’s vehemence and bloodthirstiness, though not necessarily excuse it. The country is in the middle of a reckoning over sexual abuse and harassment, largely committed by men and against women, with the #MeToo movement dominating headlines and public discourse.

Charles Gardner Geyh, a law professor at Indiana University’s Maurer School of Law whose work centers on judicial conduct and ethics, was sympathetic to Aquilina’s experience, but said he believes her conduct set a poor example. 

“The overarching principle, which is embedded in the code of conduct of literally every state, is that a judge shall act at all times in a manner that promotes public confidence in the impartiality, integrity and independence of the judiciary,” he said.

Suggesting that it would be fitting for Nassar to be sexually victimized, if only the law allowed it, was “a step too far,” Geyh went on. “She is the representative of the government here,” he said. “From the law’s perspective, we ought to be saying no sexual assault at all.”

Emily Bazelon

✔@emilybazelon

Not OK with me. Giving the victims an open forum was incredibly powerful use of the courtroom. Holding Nassar accountable hugely important. But blood thirsty retribution undermines image of judicial impartiality. This line is just too much. https://twitter.com/MarkARKleiman/status/956362246690672640 …

8:43 AM - Jan 25, 2018

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Brenda Smith, a law professor at American University in Washington, D.C., and a national expert on prison rape, said Aquilina’s comments on sexual abuse were shocking.

“They are unfortunate in the least, and could be perceived as an invitation at the worst,” she said, noting that offenders who are convicted of sex crimes face higher rates of sexual abuse behind bars. According to a 2011-2012 survey by the Bureau of Justice Statistics, incarcerated sex offenders reported being sexually victimized by other inmates at higher rates than those held for other offenses.

Aquilina’s comments send a mixed message about sexual abuse, Smith said.

“She’s saying that sexual assault is wrong... except as retribution,” she said. “The reality is that nobody deserves to be victimized. Her comments suggest that in these type of cases, it would be appropriate, in some way, for people like Nassar to be victimized in custody.”

Other legal ethics experts were split about the appropriateness of Aquilina’s conduct.

Robert Schuwerk, professor emeritus at the University of Houston Law Center, said he would not recommend that judges make comments like Aquilina’s. Still, he said, her remarks appeared to be an honest reaction to listening to the heart-wrenching testimony of so many women.

“The judge was clearly deeply moved by the stories she heard,” Schuwerk said. “She was very angry at Nassar by the time she had heard all that testimony, and she expressed that anger.”

He said he did not believe her conduct raised any legal issues.

Stephen Gillers, a professor at New York University and an expert in legal ethics, agreed. Aquilina’s comments on cruel and unusual punishment were inadvisable, he said, but not unethical or a basis for a resentencing.

“It was likely the product of the overwhelming evidence of Nassar’s depravity,” he said.

Gillers noted that in 1994, the Supreme Court recognized that a judge can, “upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person.”

“While what the judge said is quite strong, it is not improper,” Gillers said. “At sentencing, judges speak the conscience of the community on behalf of the victim. They are no longer umpires, which is their role during trials.”

Jonathan Jacobs, director of the Institute for Criminal Justice Ethics at John Jay College of Criminal Justice, said he was surprised by Aquilina’s remarks on the Eighth Amendment, given her lengthy legal experience. (She was elected to the 30th Circuit Court in Ingham County, Michigan, in 2008.)

Jacobs said her comments could be construed as showing a sort of animus toward the defendant, and speculated that Nassar’s attorneys might try to use the remark to get leverage in whatever appeal they make.

Punishments should not be “driven mainly by vengeance,” Jacobs said. While it’s unrealistic to expect judges not to have feelings, they shouldn’t be simply led by them. 

“Maybe there was a moment of indiscipline there,” Jacobs said. “On the other hand, it was clear that the judge wanted to be supportive of the victims in an appropriate way. She was clearly respecting their feelings and taking the ways in which they had been wounded very seriously.”