The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


In Supporting the Gymnastics Victims, Judge Aquilina Got It Right

That the judge supported the gymnastic victims in being heard should be a cause for celebration, not concern--and ample caselaw makes clear that it was entirely within the boundaries of proper judicial behavior.


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.

NEXT: Why Are Previously-Convicted Felons Denied the Right to Vote?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. When contemplating the downstream liability of all those who aided and abetted Larry Nassar's long career, I started thinking about the responsibilities of anyone who vouchsafes or even authoritatively apologizes for anyone else: What if everyone were held to the standard described by Richard Epstein of the Hoover Institute on the truthfulness standard in financial offerings?

    "Making wrongful statements in a security offering is serious business. The general rule on covenants in securities (which includes both stocks and bonds) is one of completeness in which any false statement or any material admission becomes actionable on a strict liability standard.."

    Who is at risk for voicing or seconding reckless approval? ". . every accountant, engineer, or appraiser, or any person whose profession gives authority to the statement made by him, who has with his consent been named as having prepared or certified any part of the statement." All this is drawn from Section 11 of the Securities Act of 1933.

    My mind raced to thinking what the world would sound like if journalists were held to such a standard in discussing anything about President Trump. Coverage of the State of the Union might sounds a lot different.
    I actually suspect that Sean Hannity might fare rather well the rest of this week. A lot of more "respectable" mainstream talking heads and blubberers might be up the creek without a paddle, like the MSU president caught out over Nassar.

    1. On further thought, it is kinda funny that in the law it appears as though being FOR someone or some proposition may entail daunting responsibilities. Being AGAINST someone or something appears to be a somewhat more forgiving project, at least in practice. Can that be true?

    2. I know it's off-topic, but I'm fascinated by your final paragraph. Surely if anyone is in the business of "reckless approval", it's Sean Hannity?

      1. Sean Hannity names a lot of names of late and if (in or after) the State of the Union tomorrow night the POTUS fires some federal employees for cause (they should have recused themselves in some matters and didn't) we will have a huge debate over who is connecting what dots right. Totally innocent people when defamed tend to file civil actions, unless they are hesitant to face discovery.

        Most of that fight will be in the courts, but Congress will stage some real fireworks shows. Hannity will continue to maintain that Donald J. Trump did not collude with Russians, nor did he obstruct justice.

        If you have any law professor acquaintances who are out of work or just bored, I expect at least two new special counsels will be appointed soon and they will need to be staffed out. Law professors might be suited for such positions because they might be slightly less likely to have made huge donations to some political candidate or another than the most prestigious private lawyers.

        Unless they are NRA members, of course, as that is prima facie evidence they are hired agents of Moscow, according to some members of Congress. (I know I shouldn't try to use legal jargon, it just unmasks me as a non-lawyer.)

        But this is the dawn of a new age of revelations, unmaskings, and all matters contestable.

        1. I expect at least two new special counsels will be appointed soon

          One named Jade, the other Helm?

          Or do you expect Benjamin Ghazi to handle both of these assignments?

    3. Otherwise, the (non-US) common law rule for liability for negligent misstatement is stated in the UK House of Lords case of Hedley Byrne v. Heller (1964).

      Per Lord Morris of Borth-y-Gest:

      I consider that it follows and that it should now be regarded as settled that if someone possessing special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise.

      1. You are aware that in the age of Trump any reference to foreign or international law is manifestly immaterial and socially unacceptable as well.

      2. Martinned,

        Let's suppose I lived under the standard of law put forth by Mr Borth, and let's further assume that I posses special skill in the art of computers. If I then offer for no renumeration to apply that skill in order to help fix someone's computer, or per the above, even merely describe in words my impression of what might be broken, then I owe a duty of care and can be liable for negligence.

        On the other hand, assuming I were an an idiot possessing no special skill in the art of computers, then I have no such duty of care and can give negligent answers all day with no regards, since my lack of skill is an absolute shield against liability.

        Whether or not Mr Borth is correct that this is the law in some jurisdictions, does this strike you as sensible?

        For my part, if I did live under this law, I would have to politely decline all such requests (of which I now accept some fraction) and instead refer the requester to the nearest person devoid of all such skills.

        1. By way of context, Hedley Byrne v. Heller was about comfort letters given by banks. (And whether the bank can be liable other than based on the contract.)

          Anyway, Lord Morris's rule seems sensible. If you're giving someone advice based on expertise, and the person who receives the advice knows about your expertise, and you know that they are likely to rely on your advice, it seems fair to ask that you take care not to provide negligently incorrect advice.

          Borth-y-Gest, by the way, is a lovely town on the shores of Northwest Wales, near Snowdonia. Presumably, it's where Lord Morris was from.

          1. The rule is sensible as applied to an official letter from a bank given in the course of doing about its business. The duty arises not out of the bank's supposed expertise in banking (which is anyway not required to write a comfort letter, as a complete idiot can log in to a computer system and verify that so-and-so has a such-and-such line of credit, in fact, a computer system can automatically generate such a thing, which would then totally negate the premise of 'special skill') but out of their business relationship with the client.

            It's manifestly not sensible in the wildly overbroad terms given. It's not fair to create a duty in exchange for nothing at all since it increases the cost of giving free advice. What would be sensible in that case is politely declining to give advice lest one be held liable.

            Also there's only one Lorde that I recognize, although she is from the Commonwealth.

          2. No, Lord Morris was born in Liverpool. He was made a law life peer at the age of 63, and the baroncy of Borth-y-Gest became extinct when he died in 1979. The seat of a life peer often has little or nothing to do with their personal history or even residence.

      3. Damn, that Heller fella sure gets around!
        Sorry couldn't help myself. 🙂

  2. Shouldn't that be "Gymnast victims", not Gymnastics victims"? You make it sound like they were assaulted by means of gymnastics.

    1. I am a retired jail guard. I have been assaulted and injured by every means imaginable. I plead linguistic impairment.

  3. I know that Victim Impact Statements are your hobby horse, but they continue to make me uneasy. They seem to blur the line between a criminal trial, which exists to set things right between society and the defendant, and a civil trial which is where the victim gets their pound of flesh. Also, I worry that if the victim is a sympathetic white housewife the defendant will get more punishment added on than if the victim is a 20-year old black guy.

    1. We don't often agree. We do here, except I would choose a stronger adjective than "uneasy."

    2. I find my concerns largely assuaged because it's all after the finding of guilt.

      1. For the sake of those who think a finding of guilt makes victim impact statements not-prejudicial, let's try on a hypothetical: It's a judge who will shortly stand for re-election. The convicted defendant is actually innocent. He's a black man who happened to be in a honky tonk when a couple of white cops came in, and got shot dead by someone who fled. Eyewitnesses mistakenly pointed to the defendant. Now it's time for witness impact statements, from family members and fellow cops. It's Mississippi. The defendant is, in effect, on trial for his life, depending on what the Judge and the public decide after hearing those statements. No problem with prejudice there?

        1. So you hypo is about the sentencing after a spurious finding of guilt in a racially tinged jurisdiction?

          There are much greater flaws in that system than victim impact statements.

          1. I gave some thought to that objection before entering the comment. Decided that anything with the potential to make the worst features of the justice system yet more baleful is not something that I want influencing any part of the system.

            Also, I asked if you see any problem with legal prejudice in the hypothetical I offered. You don't seem to have answered that.

            1. I hate to buck a good hypo, but I can't figure out the prejudice or lack therof in the sentencing because it would seem to me the legal prejudice of the trial swamps the prejudice of the sentencing.

              Moreover, what's the counterfactual - that a judge unburdened by these statements would be able to make a correct sentencing decision that would be based on the questionable factfinding of the original trial? Because that's not allowed.
              But beyond poking at your hypo, I think I see where you're coming from. It's a broad concern of an emotionally compromised judge. I do not disagree that there is a risk/cost there. But there are also benefits on the other side of that ledger, as is discussed above.

        2. Why choose Mississippi and not some place like Boston or St. Louis?

        3. "Predjudice: an unfavorable opinion or feeling formed beforehand or without knowledge, thought, or reason."

          By definition information that is provided after the guilty verdict can't be predjudicial. Not to say that verdicts are 100% correct, or that other biases or predjudicial information couldn't have been responsible for the guilty verdict.

          You will have to find a different word than predjudicial to describe post-verdict victim impact statements. The opinions formed from hearing them are not "formed beforehand or without knowledge, thought, or reason."

          1. In the legal sense, prejudicial means that it impacts the court's (i.e. the judge's or the jury's) decision in an improper manner. So anything that has the potential to impact the judge's sentencing decision even though it is not supposed to be legally relevant can be prejudicial.

      2. There is also this. The standard of innocent until proven guilty is a tough bar for legal laymen to clear, even after being tutored on it in the courtroom. Even those for whom the standard is long-accustomed and reflexively observed?including the judge (we hope)?understand from day-to-day experience that legal laymen outside the courtroom, and likely some on the jury, tend instead toward a standard which allocates guilt to the defendant in proportion to harm to the victims. And they all expect to be judged personally, throughout the community, after the trial, more-or-less according to how well the trial outcome confirmed that public prejudice. And during every phase of the trial, they all know victim impact statements are coming before the sentence is handed down. To me, that suggests it is too optimistic to expect that because impact statements come after the verdict, that means they do not affect the verdict.

        1. Just so I understand your claim: the fact that the jury knows that victim impact statements are coming (but doesn't know the contents of those statements) has a backwards-in-time causal impact that prejudices the trial itself. And this is true even though there are no VIS if they acquit.

          1. As your comment shows, you know there is nothing backwards in time about it.

            1. I'm not arguing with you Stephen, my comments are intended for the third-party reader to decide whether you are asserting an a-causal impact.

        2. This seems like one of the more idiotic positions you've taken (which, after the monkey photo thing, is saying something).

          I agree that jurors in serious cases probably understand that the victim will be upset and that the defendant may face serious consequences.

          I'm skeptical that the fact that the victim can explain to the judge how severely they were harmed will influence the jury's verdict.

    3. I can see both sides of this issue. But for the criminal law practitioners out there, I have questions: to what extent, if any, do the rules of evidence apply to witness statements, and what standard of review is applied on appeal if a defendant challenges a sentence imposed by a judge based on witness statements? The hypothetical that comes to mind is a judge who imposes the maximum sentence based on witness statements that are grossly exaggerated or shown later to be false. How does the law account for that?

      1. That depends if the judge sentenced within the guideline or imposed an exceptional sentence beyond the guidelines. Note that any fact that changes the guidelines upwards must be submitted to the jury (US v. Booker).

        Assuming you meant the former case, in which the judge imposes the maximum sentence within the guidelines, then the trial court has discretion and can be reversed on appeal only if it is unreasonable (a high bar).

    4. In some (not all, maybe not even most) criminal cases, society is motivated (maybe partially) by a desire to vindicate wrongs done to identifiable victims.

      This seems fairly evident, at least insofar as your claim appears to be total.

    5. Why uneasy? The perpetrator/defendant is allowed to make a statement in order to sway the judge to reduce the sentence; why shouldn't the victim(s) be allowed to also make a statement in order to sway the judge?

  4. It is one thing to allow victim impact statements, but to allow it for victims who were not otherwise part of the case at least seems ... injudicious, never mind over a hundred of them. Similarly with the judge setting aside any sense of judicial detachment to cry "j'accuse". Surely there are enough Paul Cassells in the world for that job to allow the judge to maintain some semblance of fairness.

    Paul, I can can agree with some reasonableness in incorporating the impact of the crime, on victims or otherwise, on the judgement and sentencing. However, there is a thin line between that and disproportionate revenge or punishment, not for the crime, but for the crime of being less sympathetic than the victim. I am curious where you would draw the line, if you indeed would.

    1. In what sense is having these victims speak "revenge or punishment"?

  5. The victim impact statement does seem to be a useful exercise. But it's going a too far to endorse the judge going from empathy to righteous anger. That's coming dangerously close to becoming a country of men not laws.

    Turning the sentencing hearing into an inquisition is a bad thing for a number of reasons:
    It elevates the judge over the victims,
    It puts the judge into a public advocacy-eque position, with all the degradation of the judicial role that implies,
    It discards the perception of judicial impartiality for one of judicial intervention that's one step away from self help - if the judge is furious and active, why shouldn't I indulge that as well?

    Even if you think this particular procedure was great, there's gotta be a line, right? If the perception of impartiality isn't the line, where would you draw it? Is it crime-based - do child molesters get a harsher protocol in this arena than car thieves?

    1. "But it's going a too far to endorse the judge going from empathy to righteous anger. "

      Judges do "righteous anger" all the time at sentencing. Look at any sentencing they show on the 6 or 11 local news. Its just part of the game. Like here, its not serious.

      Nassar was getting the same sentence regardless.

      1. Nothing above has to do with the sentence handed down. It's about the purpose of our judiciary in society.

        Whether a regular part of life or not, judges seeing themselves as conduits for community outrage is bad.

        1. If outrage is what the community wants, it ought to get it. Judges serve the people.

          Its just words. Words don't hurt. 100 years in prison hurts.

          1. Judges are not always political appointees. That is because they are supposed to serve justice. The perception that due process and justice is what is being done, and not personal vengeance, is one of the things that keeps self help down and our society ordered.

  6. Victim-impact statements and expressions of wrath from the bench are particularly problematic in jurisdictions where the judges don't serve for life, but have to run for re-election or are subject to retention elections. Under such circumstances, the judge has a strong incentive to elicit the most heart-rending victim statements possible, then to deliver the most scathing possible condemnation of the criminal?with a commensurate sentence.

    1. I'm just guessing here but I would assume a judge who acts like that could be censored or suspended by the state.

      Heck, even Alabama suspended their Chief Justice Roy Moore which is...hilarious!

    2. But the length of the sentence is already constrained by the legislature. If we don't want them give scathing sentences, then the legislature should limit the maximum sentence for the offense by law.

      [ Which then triggers the more searching review when a judge departs from the guidelines. ]

  7. Adding on to the comments above, giving victim impact statements a highly visible place in the judicial process may actually have severe unintended consequences.

    Consider the crime where the victim is no longer able to speak for him/herself. And maybe family aren't available to speak for them, either. If victim impact statements are perceived as leading to longer sentences, have you increased the incentive to not leave victims alive? And if so, even if only in a minority of cases, is that really a net social gain?

    1. I also question the due process controls. Are victim impact statements given under oath? Are they subject to cross-examination? What counter-balancing incentives are there to keep victims from lying - from exaggerating their impacts for revenge (or other socially-unacceptable motive)?

      Yet requiring victim impact statements to stand up to the rigor of cross-examination or other judicial controls would seem to be terribly damaging to the very emotional state that they are intended to create.

      1. Given that they are given post-conviction, which due process rights do you think are implicated here?

        Is your view of those rights consistent with the Court's opinion in Watts? Or with 18 USC ?3661 for that matter?

        1. Last I checked, due process was supposed to apply all the way up through sentencing. You can't, for example, be sentenced to life imprisonment for jaywalking and you'd have due-process defenses (among others) if a judge tried to impose such a sentence based on unproven allegations.

          Yes, that means that if you take 18 USC ?3661 to extremes, I question its constitutionality. To the extent that Watts (the 1995 Watts, right?) upheld that rule, I think it was mistaken. The principle of limited government means that the government should be required to prove not only all the facts necessary to convict you but also all the facts necessary to enhance your sentence.

          The alternative is overly deferential to judges and incompatible with the idea of rule of law rather than rule of men. Consider a strict interpretation of 18 USC ?3661 and Watts in the jaywalking example again. With no limits whatsoever, what prevents a judge from deciding that the fact that you are a Democrat (or Republican or blue-eyed or hired a lawyer I don't like or part your hair the wrong way or that I personally think you were really guilty of unrelated crime A but you got over on the jury that time) is a sufficiently aggravating factor to increase your sentence to life in prison?

          1. Increase it from what? In the federal system, judges have to specifically justify upward or downward departures from the guidelines ranges. If a judge says, "The guidelines are 240 months, but I'm giving you life because you're a blue-eyed Democrat," then he'll be reversed.

            Oh, and I have news for you: people are sentenced based on crimes that they were not charged with, or even acquitted of, all the time.

          2. Rossami: G*d I wish there were an upvote button here!

          3. First of all, there are two different scenarios for being given life for jaywalking that absolutely need to be distinguished.

            First scenario: the legislature says jaywalking is punishable by up to 7 days in prison, the judge sentences you to life. Easy reversal, as upwards departures from the sentencing guidelines need to be justified and are subject to appeal. CAs routinely overturn upwards departures in the 50-100% range, a 400,000% increase doesn't stand a chance.

            Second scenario: the legislature says jaywalking is punishable by up to LWOP. In that case, due process doesn't really help you, but the 8A probably prohibits this as cruel and unusual (and the 14A incorporates the 8A C&U of course).

            Finally, 18 USC ?3661, Watts (and Booker) are the law. If you are saying that you believe the DPC requires overturning Watts, that's a fine position to take, but do come out an say it cleanly 🙂

      2. While the law in the United States is not uniform, it typically inclines against allowing cross-examination of victims delivering impact statements. I collect the relevant statutes and caselaw in: "Victim Impact Statements and Ancillary Harm: The American Perspective," Canadian Criminal Law Review, Vol. 15, p. 149, 2011 (available on SSRN).

      3. The perpetrator is allowed to make a statement in order to sway the judge for a lighter sentence, why should we refuse the same due process to the victim(s)?

  8. The comment where the Judge essentially says she wishes he could get sexually abused in prison is absolutely out of line. While it probably isn't enough to warrant a different Judge sentencing in the case, it does remove any praise for her comments at sentencing.

  9. "could certainly have been phrased more appropriately". Sorry. Not enough. Statements that are supportive of prison rape are evil and disgusting and need to be called out.

    1. Indeed, the judge was pulling back the veil on a serious problem of the jail/prison system. The frequency of prison rape, and other violences, and that it is widely understood by everyone in the justice system to be part of the unwritten sentence, borders on violation of the cruel and unusual clause.

      Hundreds of people knew what Nassar was up to, including probably at least a few parents who were in the exam room, but chose to not violate the collective silence, and they share a collective guilt for the victims. The judge, in knowing that prison rape is part of the sentence is too guilty of turning a blind eye to such rapes and violence that the defendant will suffer in violation of the Eighth amendment.

  10. Thanks for your work.

    Did all those who made impact statements accordingly qualify as "victims"? This seems to exceed what he pled guilty to and was sentenced for.

    1. With regard to victims who might have been beyond what Nassar pleaded to -- while I don't know all the details, my sense is that the judge allowed the other victims to testify because they were part of a "common scheme or plan" by Nassar to use his position of trust to abuse young girls. That is a common approach at sentencing, certainly well within the judge's discretion to allow.

      1. A "common scheme or plan" gives me the sense that the elements [here: what one does with/to people] are necessary to build something. This, however, seems more like an iterative thing.
        And my naive understanding is that impact statements are made by victims. This is a status which needs to be established. Relying on the figure of a "common scheme or plan" would still require one to establish that those who want to make statements were victims. Can it suffice that he potentially planned to make them the victims of a crime?

  11. All those paragraphs and only one or two sentences on what was actually the issue: the advocacy of prison rape. (And the issue was glanced over.)

    1. It was glanced over because it was indefensible. That being said, I think the criticism was broader than just that, but that was a pretty egregious example.

  12. Judge Aquilina's statements in sentencing Larry Nassar was inappropriate, in part because of the possibility that she financially profited from it. She turned herself into a celebrity, who was profiled in major newspapers. In the United States, fame is a commodity that can easily be monetized. This judge wrote two crime-related novels, whose sales I assume went up. And if she writes another book, publishers will certainly be more interested because she has greater name recognition. Not to mention the very real possibility that she is auditioning for a television show. She could be the next Nancy Grace. One can easily wonder if that influenced her decisions in this matter.

    1. Your tinfoil hat is on a bit tight there.

  13. Really, it just sounds like she's biased in favor of women and the accuser when it comes to sexual assault. Justice is to be served dispassionately. The justice system is already stacked crazily in favor of women accusers and crazily against accused men. Aquilina just made the system more suspect.

    I understand judges are just human. But getting emotional during sentencing, particularly after a wasteful parade of story telling during sentencing, isn't anywhere close to dispassionate. I'd be wary of any sexual assault cases brought before her.

  14. Legal layman here to veer off topic, BUT including some the reasoning employed c0ncerning what a sentencing judge should consider in extreme cases. (I have also sat through around 400 sentencings listening to judges explain themselves to a courtroom full of victims and/or their families and defendants and their supporters. I was privileged to hear all the backchatter at the defense table and also many hasty sidebars because judges in a hurry would not leave the room entirely, calling the opposing attorneys to a corner behind the bench which also happened to be close to my post.

    Suppose we have an instance where prosecutorial and police authority discretion were liberally (literally) abused resulting in a very botched investigation. Later another authority comes along and begins investigating all the apparent official malfeasance and alarming failure to do due diligence in some things, but also an alarming tendency of these very same officials to misrepresent the cases against other defendants in obtaining search warrants, etc. appearing to selectively and maliciously prosecute them for emotional, ideological, and other reasons amounting to sheer conflict of interest.

    As it happens, the problematically inconsistent officials have strong sympathy among the public ginned up by 95% of the media rising to lie for them. The judge gets deluged with voluminous evidence of their perfidy, but does he dare even consider punishing them?

  15. It is truly sad that so many are against victim impact statements while pushing hard for perpetrator impact statements. Seriously, every defendant is allowed to make a statement to the judge in an attempt to get a lighter sentence because they are poor, were abused as a child, have a sick relative at home, etc. Yet here we have numerous lawyers, law profs, and laymen whining about victim(s) being allowed to make a similar statement. I would also note that victim statements are rare because most victims are still afraid of the perpetrator and/or his/her family, friends, etc. coming after them if they say anything whether at trial or during sentencing.

Please to post comments