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Thursday, January 25, 2018

Judicial Impartiality at Sentencing

The internet is awash in disagreement over some comments made by Michigan Judge Rosemarie Aquilina, who presided over the Larry Nassar case.  Nassar, a doctor who treated gymnasts for the U.S. Olympic team and at Michigan State University, pleaded guilty to sexually assaulting seven young gymnasts, and it is apparent that he assaulted many more. The judge ultimately imposed a 175-year sentence on Nassar, who had already been sentenced to 60 years on federal child pornography charges.

Judge Aquilina made some very strong statements about Nassar when she announced his sentence. But it is a comment that she made on a previous day—one of the days when Nassar’s many victims spoke at his sentencing hearing—that has led to a heated debate:

“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 someone or many people to do to him what he did to others."

This is a remarkable statement by a judge, but this is also a remarkable case. And so a number of people are saying that the judge should not have made this statement, while others are saying they are glad the judge said this.

First, let me say that I haven't seen a transcript of the judge's entire remarks, and so I can't say whether the comment might seem to have a different meaning in context. But, at least out of context, the judge is suggesting that prison is not a severe enough penalty for Nassar, and that the judge would be tempted, if she could, to sentence Nassar to be sexually assaulted.  I both understand the feeling that a prison sentence doesn't seem to acknowledge the enormity of what Nassar did (especially given how cavalierly those sentences are handed out nowadays) and think that the judge should not have given voice to her personal revulsion here.

To illustrate why, let me tell you about another judge. My friend used to be a criminal defense attorney in Tennessee. One Tennessee judge he practiced in front of used to always give the maximum sentences in drug cases.  When imposing those sentences, the judge would also give a speech saying that he would give the death penalty for drug dealers if he could.  My friend used to tell the story as a colorful anecdote about Tennessee that would outrage his new Northeaster friends.  We were all outraged by that speech because of course drug dealers shouldn't get the death penalty. And the judge's speech suggests that the maximum sentences he was imposing were based on his idiosyncratically harsh views about drugs.

Now, the difference between that judge and the judge in Nassar's case is that many people actually agree with the idea that prison is too light of a sentence for those who molest kids.  In fact, not too long ago, there was a movement in this country to make child rape a capital crime--a popular movement that was succeeding until the Supreme Court declared it unconstitutional in Kennedy v. Louisiana (2008).

But even though we, as members of the public are free to indulge our disgust and anger at Nassar for the awful things he did, his sentencing judge isn't. She is supposed to be a neutral arbiter who can weigh the awful things Nassar did against any mitigating evidence.  This comment suggests Judge Aquilina can't be that neutral arbiter. And that's a problem in every case, including the cases where we couldn't imagine being such an arbiter ourselves.

Now, I’ve made this point about being a “neutral arbiter” on Twitter (in fact, this blog post is drawn from a number of tweets from earlier today), and a number of people disagree.  They’ve noted that, when announcing a sentence, a judge’s role is different than her role at trial; and that at sentencing, a judge is supposed to explain the reasons for her sentence, and that it is completely appropriate for that explanation of sentence to reflect the magnitude and awfulness of a defendant’s crime.  Both of these statements are true, but they don’t necessarily justify Judge Aquilina’s statements here. Just because judges can act differently at sentencing than at trial does not mean that there are no constraints on their sentencing behavior.  This statement happened before all of the sentencing evidence had been submitted, and it goes beyond merely explaining a harsh sentence.

Some have gone even further to say judges are not expected to be impartial overseers at sentencing; instead the judge represents “the people” at sentencing, and it is appropriate for the judge to give voice to “the people’s outrage.”  I disagree. The judge never represents the people in a criminal case; the prosecutor does.  A judge’s duty to act fairly and impartially applies to “all duties of judicial office.”  And, at least taken out of context, I think that Judge Aquilina’s statement fails to be sufficiently impartial.

So, assuming that Judge Aquilina’s statements were insufficiently impartial, what does that mean? It probably does not mean that Nassar will have his sentence reversed on appeal.  Michigan courts have not been particularly hospitable to such claims in the past. And appellate courts are generally loathe to overturn trial judges’ sentencing decisions unless they violated a relevant statute, imposed a sentence based on materially false information, or if the judge based the sentence on the defendant’s race or gender.

It *could* mean that Judge Aquilina will be subject to professional discipline for violating her duty of impartiality.  There are several examples of judge being disciplined on that basis when their sentencing comments were critical of victims or minimized the harm victims suffered.  But I’m not sure that judicial disciplinary committees will have the stomach to impose discipline where the judge’s impartiality favored victims and disadvantaged the defendant. Our current moment seems to be one where judicial leniency prompts backlash, but judicial harshness does not. And I think that asymmetry is troubling.  Impartiality requires fair treatment for both sides, not merely for victims—even victims in a case as horrifying as this one.

Posted by Carissa Byrne Hessick on January 25, 2018 at 01:37 PM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink


Bernie Madoff got a 150 year sentence (a longer sentence than Nassar). He stole people’s money. This monster molested little girls, some as young as 6 years old, which something exponentially worse. His victims are not going to get 60% of the value of their lives back like the Madoff victims are getting 60% of their investments back from the Receiver. There was no outrage over the Madoff sentence, given by a male judge. But people question whether this female judge was impartial? Please. What were her comments in front of the jury? What were her evidence decisions? I hear crickets on those two issues from the male bloggers criticizing impartiality. That is telling. Instead, you guys look at a few words - spoken AFTER conviction - in response to hearing from 150 child sexual assault victims. I honestly think these blogs are biased because I think no one would have batted an eye if a male judge expressed his opinion in the same manner. This backlash is why we need more females on the bench.

Posted by: Anon | Jan 30, 2018 9:43:38 PM

Ah, yes, judicial impartiality when it comes to gender. See Sonja Starr on the 60% gender gap in sentencing we have in this country.

Posted by: kldajflkj | Jan 29, 2018 6:07:41 AM

I suggest that when one is impartial matters.

Before one has seen any evidence, it's easy to be impartial. That's not just obvious, it's the whole point of a system of justice. But:

Once the judge has actually seen the submissions — in this instance, she had, before the hearing, seen some pretty awful stuff — it's not about "impartial." It's about "judgment" and whether that judgment is appropriate. "Impartial" would mean inability to provide well-reasoned and well-explained meaning and weight to facts. At some point or another, extreme cases necessarily result in extreme results... and I don't think it's unreasonable to characterize nearly three decades of abuse as an extreme result.

In short, this is a hard case potentially making bad soundbites. "Impartial" is the wrong word regarding outrage.

Posted by: Jaws | Jan 26, 2018 3:02:16 PM

Judge what's-her-face has a reputation for exhibits like this. I seem to recall another one which concerned a dodgy ruling on public sector pension benefits.

The role of a judge in a superior court concerned with criminal cases should be to make rulings on questions of law, to review plea agreements, and to make factual determination in accordance with rules of procedure (alone or with the aid of assessors).

Sentences for specified offenses are properly specified in the statute to the dollar or the day or are the consequence of formulae (dependent on factual determinations). Fudge factors to employ (taking account of previous criminal history or of the defendant's age) are properly computed according to formulae found in penal codes as well. Modes of assessing previous criminal history are properly the business of a state sentencing commission auxilliary to the court system. The role of the judge should be to formally state the sentence in proceedings as directed by a chart.

Posted by: Art Deco | Jan 26, 2018 2:18:01 PM

Oxford: He was only convicted on charges form seven victims. The judge may not take into account the other accusers in sentencing him. She claimed that she only did as further corroboration of his guilt in those seven cases. Believe that if you wish.

Posted by: Biff | Jan 26, 2018 1:14:25 PM

He was accused of 160 cases of abuse, right? If you added the sentences together of 160 men charged with one case of abuse each, surely that would add up to at least 175 years. So it sounds like his sentence was not harsh, if anything it was probably extremely lenient and merciful. So the judge expressed herself in a perfectly legitimate and impartial manner.

His case was no more ordinary than Kloebold's and Harris'.

Posted by: Oxford Apostrophe | Jan 26, 2018 3:25:21 AM

The root of the problems identified by this post is found in judicial sentencing discretion. There is surely good reason to believe that Judge Aquilina may entertain "idiosyncratically harsh views" about sentencing in sexual assault cases. It may also be the case (although this point is likely more debatable) that while "members of the public are free to indulge our disgust and anger at Nassar for the awful things he did, his sentencing judge isn't." The obvious response to these problems, of course, is the use of mandatory sentencing guidelines. As long as substantial judicial sentencing discretion exists, there will be reason to worry about sentencing judges who are either too harsh or too lenient (we have seen examples of both in recent years in sexual assault cases). It is interesting that those who are rightly troubled by Judge Aquilna's comments seem to resist the most obvious solution to the problem. Judge Aquilina's remarks should remind all of those who are fond of attacking mandatory sentences and sentencing guidelines that this approach is not without its virtues. At a minimum, it is capable of producing a substantial measure of horizontal equity in sentencing. It is far from clear to me that discretionary sentencing has been able to achieve any coherent objective.

Larry Rosenthal

Posted by: Lawrence Rosenthal | Jan 25, 2018 11:09:48 PM


Glad you offered a better definition.

Posted by: TomorrowISavedAWhale | Jan 25, 2018 10:23:16 PM

^ That's all impartial means, huh? Whew. Glad you were here to sum it all up in three easy sentences for us!

Posted by: YesterdayIKilledAMammoth | Jan 25, 2018 9:13:16 PM

Impartiality simply means, would she have given the same sentence to a woman who had done the same thing to men? And it sounds like, yes, she would have. So yes, she was impartial--didn't take sex, race, age, socioeconomic status into account.

Posted by: Carlsbad | Jan 25, 2018 8:50:39 PM

good post. I'm honestly surprised at the amount of push back there is against the idea that judicial fairness is incompatible with a judge stating that she would like the defendant to be raped in prison. For me it goes even beyond fairness concerns. Prison guards will hear this message, and all the cheers that it brought, loud and clear.

Posted by: pc | Jan 25, 2018 6:16:53 PM

Excellent post , deserves every possible compliment . Yet , I am afraid , that the respectable author of the post , has missed the main issue with all due respect , and it is that :

Impartiality , is a negligible issue here , the real one , is simply , that the judge , expressed indeed her explicit wish , that cruel and unusual punishment , would have been not prohibited by the constitution . That is to say , that , such statement , should be condemned and disqualified , for it is rejecting an inviolable constitutional principle . One can't imagine , that an article in the constitution , should " flicker " in accordance with the case brought forward to a judge , Once valid , and then invalid . So , her wish as expressed , is rather for it , to become constantly invalid in fact . That is the an awful idea , and constitutional reasoning , is absolutely unnecessary here . For it is already ruled , that even those waiting for execution , can't wait too long , for it is : a cruel and unusual punishment , our cruel offender , is " only " sentenced for serving time in prison finally .


Posted by: El roam | Jan 25, 2018 3:30:10 PM

"But even though we, as members of the public are free to indulge our disgust and anger at Nassar for the awful things he did, his sentencing judge isn't. She is supposed to be a neutral arbiter who can weigh the awful things Nassar did against any mitigating evidence. This comment suggests Judge Aquilina can't be that neutral arbiter."

Why does it suggest that she isn't able to weigh the awful things he did against mitigating evidence? This seems to be the nub of your argument, but I don't see any argument for it. Maybe she's perfectly capable of that weighing, but she doesn't see any significant mitigating evidence or thinks it's outweighed by what he did to hundreds of victims. That doesn't seem like such an implausible view on her part. To say that because a judge says that someone deserves an extraordinarily severe sentence she therefore is incapable of weighing what he did against mitigating evidence only makes sense, it seems to me, if a neutral weighing of the defendant's crimes against mitigating evidence would necessarily lead to a different conclusion. Otherwise there's no inconsistency between their statement and being a neutral arbiter. And I guess I don't see that, but for the Eighth Amendment, someone perfectly open to mitigating evidence and not inordinately biased in favor of sexual-assault victims couldn't reach the conclusion in this case that Nassar deserves an extraordinarily punitive and even tortuous punishment.

Posted by: Asher Steinberg | Jan 25, 2018 3:26:45 PM

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