A 175-year sentence was handed down Wednesday to Larry Nassar, the former team doctor for USA Gymnastics, following a conviction for sexually abusing more than 150 victims.
For anyone following the testimony and listening to the heartbreaking stories of the women assaulted by Nassar, his actions are beyond disgusting and depraved, and some may even think 175 years is too light a sentence. Judge Rosemarie Aquilina clearly thought so, openly imagining at sentencing what she would likely to do to Nassar if not for the Eighth Amendment to the Constitution, which forbids “cruel and unusual punishment.”
The judge said in part, “Our Constitution does not allow for cruel and unusual punishment. If it did, I have to say, I might allow what he [Nassar] 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.”
She also stated that it was her “privilege” to impose what she termed signing Nassar’s “death warrant,” and made other colorful, emotional, and frankly pointed comments toward Nassar during the proceedings.
While I totally understand the judge’s sentiments and it’s true that nothing can ever truly restore the evil this man perpetuated against these women, as an attorney I am very disturbed the judge would show such open, blatant, and hostile personal animus. Regardless of the obviously heinous nature of the crime, even through conviction and sentencing a judge’s role is to remain an impartial arbiter and sentence according to law, not sentence according to emotional hatred or vengeance toward the defendant.
In doing so, the judge becomes an advocate for the victims and cannot be an impartial arbiter, which all state and federal judicial office holders are required to be. It is never appropriate for a judge to suggest and display such personal animus, or suggest that but for a constitutional restraint, a judge would herself desire to allow criminal acts of violence and assault against a defendant she is required to administer legitimate justice toward.
Unfortunately, she may be setting up her sentence to be overturned on appeal or reduced, which is unhelpful to the victims who may then be in the position of having to return to court and relive their trauma again. Statements like Judge Aquilina’s go beyond legitimate governmental interest in the sentencing range and judicial discretion, and any good defense attorney can point to her clear showing of personal hostility toward Nassar to reduce or even vacate the sentence.
The public may think it’s not a big deal because clearly Nassar’s actions were so disturbing and justify a 175-year sentence, but it is required that our judicial officers are fair and impartially apply the law in handing down their sentences and do not abuse their discretion by arbitrarily sentencing according to their personal bias or emotional favor of the victims.
Imagine if judges were permitted to favor one party’s position over another according to their personal bias. Our entire system would be undermined for lack of judicial impartiality and equal protection under the law.
Judge Aquilina provides an almost ironclad appeal for the defense in her unprofessional display, and ultimately rather than supporting the victims, she will undermine the closure and justice that the victims seek.
The New York Times even characterized Judge Aquilina as emerging “as a fierce advocate for the women.” No judge can or should ever be an advocate for a party in his or her courtroom.
Even amidst our anger and the #MeToo moments, we cannot let emotion override the legitimate safeguards the law has in place to effect justice for everyone — even the Nassars of the world — who are going through our criminal justice system.
Jenna Ellis (@jennaellisorg) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is an attorney and professor of constitutional law at Colorado Christian University, fellow at the Centennial Institute, radio show host in Denver, Colo., and the author of The Legal Basis for a Moral Constitution.
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