In Supporting the Gymnastics Victims, Judge Aquilina Got It Right

The Volokh Conspiracy

by Paul Cassell

Recently the country watched Michigan Judge Rosemarie Aquilina allow crime victims—dozens of them—to testify during the sentencing hearing of Olympics doctor, Larry Nassar. These victims spoke eloquently and emotionally about the terrible harm that Nassar had caused. After hearing from the victims, Judge Aquilina sentenced Nassar to 40 to 175 years in prison, to be served after completion of an already-imposed 60-year prison term. The lengthy sentence appears to have broad public approval as punishment that fits the crime. But a few legal commentators have been carping about the process leading up to the sentence, suggesting that Judge Aquilina somehow stepped outside proper judicial boundaries in providing so much support for the victims. These allegations misunderstand the law governing sentence proceedings. In fact, what Judge Aquilina did was clearly within her judicial role and should be celebrated not criticized.

In this case, the system worked as it was intended, and Judge Aquilina properly gave the victims an opportunity to have their voices heard. Michigan voters amended their state constitution in 1988 to give crime victims rights—specifically relevant in this context, the "right to make a statement to the court at sentencing." What we saw over the last week or so was victims exercising this right to make a statement, specifically giving what is commonly referred to as a "victim impact statement."

Victim impact statements play multiple roles during the criminal justice process, as I have explained at length in my article "In Defense of Victim Impact Statements." One of the most important purposes of a victim impact statement is providing information to the sentencing judge about the full scope of a crime, so that she can impose punishment that fits the crime. The victims' statements over the last few days powerfully demonstrated the long-lasting physical, emotional, and other consequences that followed from Nassar's crimes. Collecting that information was part of Judge Aquilina's job in imposing sentence, not a detour from it.

Another important purpose of a victim impact statement is driving home to the defendant the full consequences of what he has done. It is possible that Nassar's victims were able to cause him to appreciate, at least to some small degree, what he had done to these women. Early in the sentencing process he complained to the judge about being forced to listen to all the victims, but by the end he was apologizing and claiming to have been shaken to his core.

Yet another important purpose of a victim impact statement has been often overlooked in some of the critical commentary. Apart from any impact on the sentencing process or the defendant himself, a victim impact statement can have important therapeutic benefits for victims. I summarized the relevant empirical literature on this subject in my article:

One thorough assessment of the literature on victim participation explained, "The cumulative knowledge acquired from research in various jurisdictions, in countries with different legal systems, suggests that victims often benefit from participation and input. With proper safeguards, the overall experience of providing input can be positive and empowering." Thus, the consensus appears to be that victim impact statements allow the victim "to regain a sense of dignity and respect rather than feeling powerless and ashamed."

Judge Aquilina helped the victims through the process of giving a victim impact statement, offering words of encouragement and furthering their efforts to regain their dignity and respect by allowing them to explain what had happened to them. In furthering their healing process, the judge doing nothing more than allowing victim impact statements to work as they were intended to work.

In light of these general purposes of victim impact statements, the general reaction to Judge Aquilina's handling of the sentencing hearing appears to have been positive. But inevitably, rather than celebrating what should have been regarded as an example of an important government process working as intended, a few commentators have appeared to carp about some aspects of the case. For example, writing in Vox, defense attorney Rachel Marshall argued that "[t]hroughout 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." Similarly, writing in Time magazine, defense attorney Anne Gowen claimed that Judge Aquilina departed from her judicial role because "[a] judge who reframes the sentence she selects as a personal expression of disgust with the actions of the defendant and the defendant himself has changed the task she was assigned." And, writing for The New Republic, Andrew Cohen claimed that "[t]o her discredit, Judge Aquilina abdicated her role as an impartial arbiter and became instead a tribune for prosecutors and the victims. She did this by showing relentless hostility and anger toward Nassar."

These arguments might have some initial plausibility—if Judge Aquilina had been presiding over a trial to determine whether Nassar was guilty or innocent. But she was conducting a sentencing proceeding, in which Nassar had already pleaded guilty and admitted he was a child molester. The proper judicial role at sentencing is much different than an umpire just calling balls and strikes. When sentencing a justly-convicted criminal, the judge is perfectly entitled to be the voice of the community she represents—a community that was no doubt shocked by the magnitude of Nassar's crimes.

The U.S. Supreme Court has considered—and rejected—allegations of judicial "bias" in analogous contexts. In rejecting an argument that a judge should have recused because of negative opinions he expressed about a criminal defendant, the Court explained:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task. . . . Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.

Liteky v. United States, 510 U.S. 540, 550–51 (1994) (internal quotations omitted).

Judge Aquilina was sentencing a child abuser who had harmed more than a hundred underage girls. As the Supreme Court indicates, it would hardly be surprising to find that she was, to put it mildly, "exceedingly ill disposed towards" Nassar. But that is not bias—but simply the consequence of a man choosing to commit horrible crimes and then being held to account.

The law in Judge Aquilina's jurisdiction—Michigan—is to the same effect. As long ago as 1989, shortly after enactment of Michigan's victims' rights amendment, the Michigan Court of Appeals rejected a claim of judicial bias arising from the judge reviewing an allegedly "inordinate degree of inflammatory, marginally relevant, prejudicial statements" from the relatives of a homicide victim. In rejecting the claim, the Michigan Court of Appeals emphasized that "[t]he impact of a crime on a victim is a valid sentencing consideration. In view of the enactment of the Crime Victim's Rights Act, with its explicit provision for victim input into the disposition of criminal cases, including sentencing, a contrary conclusion is not tenable. We do not believe that the judge's consideration of the impact of the crime on the victim amounted to a prejudice or bias that deflected him from making a sentencing decision within the scope of considerations recognized in[Michigan caselaw, which allows a just to consider, among other sentencing factors, the disciplining of the wrongdoer, the protection of society, the potential for reformation of the offender, and the deterring of others from committing like offenses]." People v. Jones, 179 Mich. App. 339, 342–43, 445 N.W.2d 518, 520 (1989).

A few years later, in 1992, the Michigan Court of Appeals reiterated the point and went further, making clear that judges can say harsh things about criminals they are sentencing: "Sentencing is the time for comments against felonious, antisocial behavior recounted and unraveled before the eyes of the sentencer. At that critical stage of the proceeding when penalty is levied, the law vindicated, and the grievance of society and the victim redressed, the language of punishment need not be tepid." People v. Antoine, 194 Mich. App. 189, 191; 486 N.W.2d 92 (1992).

Interestingly, several commentators have criticized Judge Aquilina for saying she had signed Nassar's "death warrant" in sentencing him to a multi-decade term of imprisonment. But just last summer, the Michigan Court of Appeals rejected a claim of judicial bias when a Michigan trial judge expressed the "wish" that a defendant has been caught committing a more serious crime, because then "you might not be going to the Department of Corrections for 10 years, you might be getting buried in some cemetery." In rejecting an argument of bias, the Michigan Court of Appeals noted that, "Without question, aspects of this statement reflect a certain level of frustration by the trial court. However, considered in context, we conclude that this statement was not an expression of personal bias or animus toward defendant, but rather was an attempt by the trial court to impress on defendant . . . the serious nature of the consequences that his actions could have had, and of the impact of his actions on the victim." People v. Mitchell, No. 332266, 2017 WL 2607900, at *5 (Mich. Ct. App. June 15, 2017). The Michigan Court of Appeals also noted that the comments were responsive to points made by the victim in a victim impact statement, explaining that the "trial court's comments thus addressed the grievance of society and redress of the victim, and did not demonstrate actual bias." Id.

Nor was there any legal problem with Judge Aquilina stating, at the conclusion of the sentencing hearing, that the victims should do their best to put the matter behind them. In 2015, the Nevada Court of Appeals rejected a domestic violence abuser's attack on sympathetic remarks made by the judge to the victim. In that case, the victim described how she was harmed by the defendant's battery, i.e., that she had panic attacks, her relationship with her husband and children was affected, she suffered from nightmares, and she no longer drove alone because she was afraid. The trial judge had advised the victim to put this matter behind her, suggested she seek counseling from a religious leader, and informed her that the defendant would be going to prison for a long time. In rejecting the defendant's claim that these actions showed bias, the Nevada Court of Appeals explained that the remarks were proper, noting that the "were made at the end of the victim's impact statement—after all of the other evidence had been presented and immediately before he imposed the sentence. We conclude these remarks do not exhibit an impermissible bias or prejudice." Diaz v. State, No. 66589, 2015 WL 3824906, at *2 (Nev. App. June 16, 2015).

Nor was their any legal problem with the judge making comments expressing sympathy for the victims. The North Carolina Court of Appeals considered a case where the defendant complained that, after a judge heard a victim impact statement at sentencing, he commented: "Today is a classic example of why victims need to be recognized and the court system needs to become their friends, not their enemy." The North Carolina Court of Appeals explained: "We do not feel the above statement manifests a bias against defendant. At most, it only illustrates an affinity for the use of victim impact statements, a procedure that is specifically endorsed by our statutes." State v. Hendricks, 138 N.C. App. 668, 671–72, 531 S.E.2d 896, 899 (2000)

Finally, in my home state, in a sex abuse case, the Utah Supreme Court has addressed an allegation very similar to the claim of bias made against Judge Aquilina. The Court rejected any suggestion that judicial anger towards a child abuse defendant was somehow a manifestation of impermissible bias, explaining:

Certainly, we expect our judges to "be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity." But that does not mean that due process or our Code of Judicial Conduct are violated whenever a defendant's criminal conduct and subsequent excuses inspire anger in a judge. Perhaps there is a judge who could remain emotionally neutral when faced with a father who sexually abused his daughter, tended to blame her for the abuse, and then tried to rationalize it by stating that he thought it would have been a good experience for her. But no law requires it.

State v. Munguia, 2011 UT 5, ¶ 20, 253 P.3d 1082, 1089–90.

Some commentators—including Reason's own Robby Soave—have seized on one brief comment Judge Aquilina made to find fault with her performance. As Soave explains, Judge Aquilina said during one of the proceedings, "our Constitution does not allow for cruel and unusual punishment. 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." Soave identifies these remarks as coming when Judge Aquilina sentenced Nassar, although actually they came a day earlier. Soave, quite properly, finds fault with any suggestion that Nassar should be assaulted because of the assaults he committed. But while the judge's sentiments of disgust with Nassar could certainly have been phrased more appropriately, a single off-hand remark should not be the basis overlooking the tremendous work that Judge Aquilina did over the course of multiple days of emotionally complex testimony.

What we should remember from the sentencing hearing is Judge Aquilina's closing remarks, not to Nassar but to his victims. "Leave your pain here," she said, "and go out and do your magnificent things." That was the human thing to say. And, as the cases collected above make clear, that was the judicious thing to say as well.

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