Judge Rosemarie Aquilina last Wednesday sentenced Larry Nassar to 40 to 175 years in prison for sexually assaulting more than 150 gymnasts while working for USA Gymnastics. Earlier in the sentencing hearing, she told Nassar he deserved to be raped himself.
“Our Constitution does not allow for cruel and unusual punishment,” she stated. “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.”
The prison sentence was fully justified. The rape comment was appalling.
Nassar’s victims deserve to have their suffering recognized by a drastic sentence, and if anyone ever deserved to die in prison, Nassar does. Also, unlike most other people serving life sentences for crimes different than Nassar’s, he would continue to be a danger to young children even at an advanced age.
But Nassar doesn’t deserve to be raped. No one does.
Not only is that comment an appalling thing to hear from the seat of justice, it’s likely to act as an incitement. There’s a risk that inmates in the Michigan prison system will hear that remark and feel empowered to act on it, or that corrections officers might interpret it as a suggestion that they turn a blind eye to Nassar being assaulted.
Some of Aquilina’s other decisions were admirable, especially her choices to let all of Nassar’s victims speak, to force the defendant to hear them, and to allow media coverage. It was only after that spectacle—months after Nassar’s conduct, and the conduct of his enablers at Michigan State University and in USA Gymnastics, were public knowledge—that heads began to roll at both organizations.
All of the progress she produced makes Aquilina’s intemperate rape remark even more regrettable. But her rape comment wasn’t the only troubling action she took in the courtroom. During her sentencing statement, Aquilina told Nassar, “I just signed your death warrant.” She also tossed his apology letter aside after reading portions of it aloud.
I would prefer a system in which a judge calmly explains the basis for a sentence—perhaps including a statement about why the underlying crime was so appalling—but doesn’t subject the defendant to insults that add to the injury already inflicted by the sentence. Judges who openly malign defendants sow doubt about their impartiality.
Such restraint, though, is not standard practice among judges, Emily Bazelon, a staff writer at The New York Times Magazine and the Truman Capote fellow for creative writing and law at Yale Law School, said on Slate’s Political Gabfest podcast last week: “I’ve sat at sentencing hearings and heard judges say equally wrathful things and been pretty horrified by it because it just seemed like a more complex and difficult set of questions than the one that arises in this case, so I think it’s important not to lose sight of that.”
David von Ebers, the senior legal editor for Thomson Reuters Practical Law, made a similar point on Twitter: “Bottom line: If you think the Nassar judge’s comments were inappropriate or even unusual, you should go down to 26th and California in Chicago and listen in on sentencing hearings in murder cases.”
More judicial restraint would add to the solemnity of the sentencing process. But since Michigan law does not require such restraint, it is difficult to criticize this judge for acting as she did under maximum provocation.
But discussions about reforming that practice can come later. What needs to come now is a more comprehensive reckoning. Nassar isn’t the only person with criminal liability in this situation. Many of the people who ignored the victims’ complaints had legal obligations to report child abuse—and they must be brought to justice.
It would be tragic if the drama of the Nassar trial obscured these people’s guilt. And it would be just as tragic if Aquilina’s intemperance led to Nassar being raped in prison, while those legally charged to protect him did nothing.
Mark A. R. Kleiman is a professor of public policy at New York University’s Marron Institute of Urban Management.