Larry Nasser, the one-time physician for the USA Women's Gymnastic Team, spent years sexually abusing young girls. He had at least 150 victims. He recently got 40 to 175 years in prison, all of it earned.
The judge's behavior at Nassar's sentencing, however, was another reminder of why jurists should be bound by rules and not by taste. My friend Paul Mirengoff at Powerline explains it with his typical surgical clarity:
[T]the judge, Rosemary Aquilina, meted out the sentence in a disturbing, over-the-top performance. She couldn't stop talking about herself. We heard about her family, her dogs, her ethnic background (Maltese and German, in case you were wondering), her military service, her soccer coaching. We heard boasting: "I'm not vulnerable, not to you," "I am well trained," "I know exactly what to do," "I've done my homework, I always do," "I look at myself as Lady Justice." On the other hand, "I'm not special" and "I'm not nice." And "I don't have many friends."The judge couldn't stop saying "I." To an excessive degree, this was about her. "It is my honor and privilege to sentence you," she declaredJudge Aquilina signaled her virtue by assuring us she believes in rehabilitation. She found, however, that Nasser is beyond rehabilitation.
Paul continues:
What is the basis for this finding? I heard none. In fact, her condemnation of Nasser for not seeking treatment that could have "controlled his urges" is at odds with her view that Nasser is beyond rehabilitation.Rehabilitation isn't the point. Nasser's sentence is proper whether or not he could be rehabilitated. The judge's reference to her belief in rehabilitation was just more posturing.Egomania and grandstanding are not uncommon on the bench. However, Aquilina's performance was, I hope, off-the-charts.But the most disturbing aspect of the performance was the rhetoric she directed at Nasser. "I [that word again] just signed your death sentence," she bragged And this: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 some or many people to do to him what he did to others.Allahpundit paraphrases this statement as follows: "If not for this damned Constitution, a little prison rape would be in order." The paraphrasing is fair. The sentiment is one a judge should never utter.Will Aquilini's injudicious behavior provide a basis for overturning her sentence? I suspect it will not. But that outcome won't make her conduct any less disturbing.
As I've said many times, a considerable degree of judicial discretion at sentencing is necessary and inevitable. But judges are human beings, and long experience shows that human beings behave better when constrained by rules than when left to their own prejudices.
I would not be surprised to see this form the basis of an attack on the sentence. I don't know if the state's law allows it, but I hope the reviewing court can simply say they reviewed the sentence de novo, and it is a just and appropriate one, so no resentencing is necessary.
Your last phrase, Bill, reinforces my interest in having laws, and other actors in our constitutional system, able to constrain/check the work of human-being prosecutors (particularly in light of all the crazy stuff I am hearing of late about the FBI/DOJ).
On the Nassar case, I find it troublesome (and perhaps telling) that all the hand-wringing about Judge Aquilina's behavior does not significantly engage with the fact that the entire state sentencing proceeding was, functionally, a show trial for the victims' benefit because Nassar is already serving a functional LWOP federal sentence for receiving child porn.
I am not saying there should not be a state proceeding for all of Nassar's offenses nor that I am upset that he will rot in federal prison. I am saying that it is a bit quirky to complain about showboating by Judge Aquilina when plea deals cut by federal and state prosecutors and Nassar's lawyers established the groundwork for Judge Aquilina's entire showy approach to her task.
In addition, ironically, one reason it seems Judge Aquilina was so harsh in her rhetoric was because Nassar was complaining to her about how harshly he felt he was treated by the federal judge in his federal sentencing. Those complaints do not justify calling for prison rape, but they provide further interesting context for my assessment of everyone's behavior here.
As it too often the reality, the Nassar case becomes a vehicle for nitpicking the work of a judge while everyone fails even to notice how much work by prosecutors (and others) contributed to the overall administration of justice.
Doug: I don't see how the Federal sentence previously imposed in any way established a basis for Judge Aquilina's beyond the pale/injudicious showboating. Judges are in control of their courtroom and set the tone for the proceedings.
While Nasser is clearly one of the most unsympathetic defendants in recent history, Aquilina risked the circus like atmosphere by allowing anyone who was aggrieved by Nasser, even those not part of the indictment, to provide a victim impact statement.
Professor Berman, I'm not quite sure what your complaint here is against the state prosecutor. You say that "I am not saying there should not be a state proceeding for all of Nassar's offenses," but also say that the work of state prosecutors (and Nassar's lawyer) "established the groundwork for Judge Aquilina's entire showy approach to her task." Other than not charging the assaults on the women, I don't see what the prosecutor could have done differently, or how what the prosecutor and/or defense counsel did "established" the groundwork for Judge Aquilina's over-the-top sentencing (other than by working out the pleas). Other than in this "but-for" sense, nothing they did had anything to do with the judge's "performance."
This comment seems to be an attempt to create some faux germaneness. It's slightly off-putting. The prosecutors here have done nothing wrong. It's possible, of course, to debate whether this guy should have been prosecuted---and maybe, on the whole, it was unnecessary. But that's a debate with no real answers, and ascribing responsibility (i.e., blame) to prosecutors is unfair.
I suspect that Doug doesn't really care about the FBI/DOJ shenanigans as they have been directed at the bete noire Donald J. Trump.
in reverse order:
1. federalist: I care a whole lot about the FBI/DOJ shenanigans directed at DJT because I am not a partisan, and I always worry a lot about prosecutors (especially unelected federal prosecutors) who exercise so much powers with so few checks, so little real accountability and so little transparency. Indeed, that was the real point of my comment --- everyone is making much of a judge's showboating (which I also think is ugly), but nobody engages with the substantive decisions made mostly by the prosecutors that helped create the circus conditions for this show sentencing.
Critically, I am not "blaming" the prosecutors for anything --- nor am I saying that the judge's behavior is justified by the prosecutorial choices here. I am just calling attention to the fact that prosecutorial choices --- good or bad --- get completely overlooked even though they functionally ended up creating a show sentencing that, as I see it, led this judge to happily serve as a ring master in a circus environment that others here lament.
2. tab: you raise a good question, and I do not know Michigan law or practices well enough to provide an informed response. mjs brings up the point that so many were allowed to testify at the state sentencing hearing when not the subject of indictment/conviction. Perhaps the prosecutor could have sought to arrange for more "collateral" victim statements to be in writing.
My bigger complaint really is that the feds sentenced first (and longer) for child porn computer offenses when Nasser's "real" crimes seemed to be state sexual contact offenses. I prefer substance to show at sentencing, but having the feds sentence first turned the state proceeding into more show than substance. I am perhaps too sensitive to this little dance because I have been involved in cases in which the feds use severe gun or drug charges to go especially hard after folks whose "real" crimes are state offenses. (An extreme example is Edward Young, now serving 15 years in federal prison for illegal possession of seven shotgun shells: http://www.opn.ca6.uscourts.gov/opinions.pdf/14a0234p-06.pdf)
3. mjs, I agree that Judge Aquilina's awareness that Nassar was already sentenced to die in federal prison does not justify or excuse her showboating. But that 60-year sentence meant that she knew, consciously or subconsciously, that her sentencing was not really about Nassar's fate and was really about making the victims feel vindicated.
Moreover, if you read the full sentencing transcript, you see Judge Aquilina references a letter Nassar wrote complaining about how he was sentenced in the federal proceedings and how unfair he thought his 60-year sentence was in that case. I surmise that these complaints by Nassar about how his federal case was handled contributed to Judge Aquilina's ire.
To be clear as I conclude: I am not faulting the work of prosecutors here nor defending judicial showboating. I am just seeing the Nassar case as yet another example of how much attention is given to judges relative to prosecutors and how that does not fully reflect their relative contributions to the overall administration of justice.
There are a lot of places I could go with this, but, for uncharacteristic brevity's sake, I'll try to limit myself at least a bit.
1. Before the era of determinate sentencing and more limits on judges, we had crime galloping along with a huge increase for at least a generation. After limits were imposed by guidelines and MM's, and their implicit modest shift of power to prosecutors, crime has plummeted to levels not seen since the Fifties.
So you tell me who was doing the better job.
And if you want to recur to the very tired line that "correlation is not causation!!!" feel free, but it's just so much defense bar baloney. When the correlations are this strong for this long, they most certainly ARE causation. The defense side just can't handle it (in addition to being indifferent to crime victims).
2. You don't deny that this wildly self-absorbed jurist puts judicial indiscipline in bold relief, but this doesn't stop you from (imagine that!) directing almost all of your fire at the prosecutor.
For what sin, exactly, is not so clear. Would you have preferred no charges? Is going after gross sexual abuse another instance of The Evil Big Government? Overcriminalization? Lack of compassion? I'm not getting it.
3. The reason I gave so much attention to the judge is that she's the one who made a display of herself. This is not that hard to understand.
4. Just to be clear: The responsibility for any bad stuff coming from this case lies, in order, with the defendant, the people making excuses for child abuse (society is just, gads, so Puritanical, especially those power-drunk prosecutors!), and the judge, who can't just impose a sentence but has to go on and on and on about herself.
These are the self-same judges to whom you want to give 100% power over sentencing, completely and forever cutting out legislative MM's. This case illustrates the extent of the subjectivity that makes such power ill-advised. And that, I suspect, is the actual reason you take such an interest in it.
Bill, I think can be even more brief in response:
1. Who is discussing crime rates? If that is your relevant metric, I'd think you'd want to praise the judge for suggesting prison rape should be added to prison or for giving Nasser the max sentence that the prosecutors allowed under the plea deal. (Note that this was not a max sentence, but the max allowed under the deal struck.) Also, notably, why no praise for this judge's attentiveness to crime victims while taking shots at the defense on this front?
2. I seek no "fire" for prosecutors, only light. I get that Mueller et al. prefer to work in secret, but what is wrong seeking to shine more light on their discretionary decisions here and elsewhere? Are you against prosecutorial transparency and scrutiny or do you think it wise to foster prosecutorial secret societies?
3. I'm not confused why you were eager to criticize a sentencing judge, but that judge's actions followed the (often hidden) work of prosecutors that I think merit noticing here.
4. I'm not lamenting "bad stuff" in this case, but showcasing the role of prosecutors with 100% power setting the parameters and environment for a judge's exercise of sentencing discretion. (And now that I think of it, this case provides a great example of how prosecutors often can and do, through pleas, limit judicial discretion without concerns for statutory mandates.) One would think that you'd see the latest FBI/DOJ uglieness as more proof that prosecutorial "subjectivity" may be much more rampant, more hidden and thus harder to see and correct than any judicial subjectivity. But IO suppose once a member of a secret society, always a member.