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The moment the judge in the Larry Nassar case crossed a line

Nassar’s victims deserve an advocate. But that advocate shouldn’t be a judge.

Judge Rosemarie Aquilina reads a letter from former Michigan State University and USA Gymnastics doctor Larry Nassar during the sentencing phase of his trial, January 24.
Judge Rosemarie Aquilina reads a letter from former Michigan State University and USA Gymnastics doctor Larry Nassar during the sentencing phase of his trial, January 24.
Jeff Kowalsky/Getty Images

Many of us have watched in horror as victim after victim testified at the sentencing hearing for Larry Nassar, the doctor who pleaded guilty to molesting US gymnasts under his care. Though Nassar had admitted to molesting seven victims, Judge Rosemarie Aquilina opened the courtroom in this phase to anyone wishing to speak, including victims of Nassar who were not part of the official case.

Ultimately, there were more than 160 witnesses, including numerous Olympic athletes, who gave gut-wrenching testimony about his effect on their lives.

On Wednesday, Judge Aquilina sentenced Nassar to 40 to 175 years in prison — a sentence she assured him means he will die in prison, since it will be served subsequent to a 60-year sentence in another case for possession of child pornography. “I have signed your death warrant,” she announced.

Throughout the sentencing hearing, Aquilina was praised for her compassion towards victims, and her comments Wednesday drew further exultant commentary. But her words to Nassar should make us uncomfortable. That’s because, perhaps without realizing it, Aquilina overstepped her bounds as a judge and adopted the role of victim advocate.

She told Nassar, “It is my honor and privilege to sentence you,” and observed, at one point: “Our Constitution does not allow for cruel and unusual punishment. If it did … I would allow some or many people to do to him what he did to others.”

That is a human reaction, but it is one you’d expect to be expressed by a victim rather than a judge. (Many observers, including me, heard the “do to him what he did to others” line as a not-so-coded expression of a hope that Nassar would be raped in prison.)

Our nation’s constitutional principles remain deliberately very distinct from biblical notions of “an eye for an eye,” but her statement had a clear Old Testament flavor. As a public defender, I may be especially attuned to such line blurring. But it is simply unfitting for a judge to broadcast such personal contempt for a defendant in her court, no matter how awful his deeds.

Throughout the proceedings, which were televised, Aquilina essentially transformed herself into a champion for a movement. It is understandable to feel empathy for previously voiceless victims, especially ones whose testimony took such bravery. But there are crucial distinctions between judge and advocate, and she traversed those lines repeatedly.

She talked to victims as though she were their confidante, telling one, “The monster who took advantage of you is going to wither, much like the scene in The Wizard of Oz where the water gets poured on the witch and the witch withers away.”

She passionately thanked victims and called them “superheroes.” As a result, she has been profiled around the country — including in a New York Times piece titled, “Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge.”

The movement to end sexual abuse is undeniably important, and it has fresh momentum as a result of the #MeToo movement. The judge’s comments may seem reasonable in light of Nassar’s actions — sexually abusing young girls as young as 6, abusing his power both as a doctor and as a representative of the Olympic team. He himself is hardly sympathetic, at one point suggesting his accusers were seeking press attention. (Although he later said, “There are no words that can describe the depth and breadth for how sorry I am for what has occurred.”)

But no matter how good Aquilina’s intentions, for a judge to make herself the face of a social cause poses a threat to the fairness of our system. We rely on judges to ensure that people’s lives are decided by neutral, independent arbiters who impartially evaluate the evidence and apply the law. That’s the only way we can trust in a system that has such awesome power to take away people’s liberty.

To be clear, I am not challenging whether the sentence Aquilina imposed was the right call. The problem is not the lengthy sentence; it’s the way she positioned herself throughout the sentencing proceedings.

It may be hard to see why this matters. But, again, as a public defender, I am concerned when judges use individual cases to send broader social messages.

I fear this tendency creates ripple effects among judges around the country, causing them to avoid exercising discretion in sentencing because of fear of public wrath if their sentences are perceived as insufficiently harsh. And it’s clear that in general, long prison sentences — whether the result of judicial discretion or legislatively mandated minimum sentencing — end up disproportionately hurting the poor and underprivileged.

By aligning herself so closely with the victims and so clearly rooting against Nassar, Aquilina also reinforced the dangerous idea that judges can and should be in sync with public sentiment.

In some ways, this is an easy case for such an alignment, given the horror of Nassar’s acts. But easy cases get us in trouble; they lead us down a slippery slope. What happens the next time, when the evidence is less clear? What happens when there is doubt as to guilt but a judge allows empathy for victims to drive decisions?

And what happens even when there is not doubt about guilt but good reason for a judge to opt for a sentence less than the maximum? I worry about future defendants who shouldn’t get sentenced harshly but may face judges too swayed by their own emotional reaction to victims — or too eager to be lauded by the public as a “fierce advocate” — to remember their role in the courtroom.

In our criminal justice system, victims don’t decide their perpetrators’ sentences, because victims (understandably) cannot be objective. Relatedly, the public shouldn’t get to decide which cases sufficiently offend us to warrant a judge abandoning impartiality.

Judges wear plain, unadorned robes. They don’t wear college insignia, sports emblems, or any other markers of allegiance. That’s by design, as judges represent absolute neutrality. We must hold judges to that standard in every case, not just some. That’s the only way we can ensure our system is fair.

That’s not for Larry Nassar’s benefit. It’s to protect everyone else.

Rachel Marshall is a public defender in Oakland, California, where she handles felony cases. She graduated from Brown University and Stanford Law School.

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