Once again the headlines bring us subtle ethics questions, this time in judicial ethics. Carissa Hessick has a very thoughtful discussion over at Prawfsblawg of the issues raised by some of Michigan Judge Rosemarie Aquilina’s comments during Larry Nasser’s sentencing hearing. As everyone knows, Dr. Nasser pleaded guilty to multiple counts of sexual assault after molesting scores of girls and young women, many of them elite athletes, over the course of many years while pretending to provide them medical treatment. In particular, there has been widespread debate over the propriety of Judge Aquilina’s remark, made in the middle 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.
As Prof. Hessick observes, “[t]his is a remarkable statement by a judge, but this is also a remarkable case.” She contends that the statement was nevertheless improper, for the reason that it contravenes the judge’s public role and image as a “neutral arbiter” during sentencing. (She also concludes that current law may offer no remedy for the impropriety other than public criticism, but does not clearly suggest whether she thinks it should.)
Prof. Hessick rejects the notion that the judge’s proper role encompasses expressing “the people’s outrage” at sentencing, arguing that this job is the prosecution’s alone. She points out, quite correctly, that acting as a voice of public disapprobation is hard to reconcile with the principle of judicial ethics enjoining impartiality in “all duties of judicial office.” This is an important point, and it makes the issue difficult. But as discussed below, I think she gives the point undue weight and scope. I discuss why after the jump.
With all respect for Prof. Hessick’s deeply considered analysis, I don’t think you can reject out of hand the judge’s role in sentencing as the public’s voice of condemnation. One of the many purposes of the criminal law is to express the polity’s consensus on what conduct exceeds which of the many concentric bounds of civilized behavior. (Some conduct is rude; some is a tort; some is a misdemeanor; some is a felony; some crimes justify more serious punishment than others; and so on in a moral scheme we all agree is relativistic even if we don’t always agree what conduct falls outside which lines.) The prosecutor accuses, and demands punishment. Her job almost always is to condemn the accused and his behavior, often in harsh and uncompromising terms. But it is precisely because the judge is the neutral arbiter of what is bad or worse that it is so resonant and meaningful when she pronounces sentence—the person we have invested with the mantle of fairness and the duty of impartiality gives us a nonpartisan view not only that the defendant was bad, but how bad in our grander scheme of right and wrong. It’s simply not the same as anything the prosecutor may say at trial or sentencing, and it shouldn’t be.
In other words, the judge’s sentence and any remarks accompanying it bear the weight of our presumptive consensus as a community with some substantial degree of shared values as to how bad an act the defendant has committed. And if you believe that part of the criminal process is to offer some restorative justice to victims (hardly an outlying point of view), what the judge says at sentencing speaks much louder and more affirmingly than anything the police or prosecution can ever offer. The affirmation of judicial condemnation is especially important for crimes that have been systematically under-recognized and under-remedied, either in general or in this particular case, something Judge Aquilina undoubtedly had in mind in conducting the Nasser sentencing hearing as she did.
That does not, of course, suggest that the sentencing judge can or should say anything that moves her, no matter how rhetorically extreme, even in a case as catastrophic and revolting as Larry Nasser’s. Here the judge said, in essence, I wish I could sentence you to being repeatedly raped, but the Constitution won’t let me. While this urge for the most literal and graphic revenge is easy to understand, and may have been held by many of the survivors of Nasser’s predations as well as many ordinary citizens, I agree with Prof. Hessick that it was not OK for his judge to express it at sentencing. But I think we disagree as to why.
Prof. Hessick seems to think that the judge’s role as “neutral arbiter” displaces any proper judicial condemnation of the defendant’s conduct. That can’t be right. Everyone agrees that judges may, and often should, explain their sentences, and in any regime in which there is any sentencing discretion that means that the judge can and often should explain why a more severe sentence is justified by a more blameworthy crime, and just what about the crime is more blameworthy. In other words, in many perfectly proper sentencing statements the judge may say I sentence you to more punishment rather than less because I—and the community for which I speak—condemn your actions to a greater degree than other defendants’ actions in cases involving comparable conduct. That’s always been true, and there’s always been, and should continue to be, room for it in our criminal justice system.
But once we recognize that there is a proper place for judicial condemnation of the defendant’s conduct at sentencing, the question shifts from whether to how it should (or should not) be done. In other words, I would suggest that the judge’s required impartiality does not displace any role as the condemnatory voice of the community as Prof. Hessick seems to be arguing, but rather is in tension with it. Like many tensions in the law, any tolerable balance is both fragile and difficult to describe.
One way to discuss how to manage this tension is by assessing the risks the tension creates. There are at least two: One is the very real and commonplace concern that the judge’s personal passions or prejudices may have caused her to impose a sentence that is either more or less severe than a more “objective” (or less passionate or prejudiced) judge might have imposed. Leaving aside the well-rehearsed observation that the standards at play here are to some degree fluid (if not chimerical), we have appellate review of sentencing under various forms of an “abuse of discretion” standard that in most jurisdictions take into account both what the judge said and what the judge did. What the judge said to Larry Nasser seems a lot less reasonable than what she did to him—a very severe sentence for very severe, damaging, and multiplicative crimes for which he accepted little responsibility and expressed limited remorse. (Nasser had the shockingly, perhaps insanely, bad judgment to complain to the judge in writing during the sentencing hearing about how unpleasant he found it to hear the women he had abused address him about it, and to question their sincerity and veracity by asserting, as if he were some sort of tragic hero, that “hell hath no fury like a woman scorned.”)
The other concern created by the tension between the judge’s conflicting roles as neutral arbiter and voice of community condemnation is that an improper sentence or statement in connection with sentencing may damage or erode the legitimacy of criminal punishment’s substitution in our society for personal vendetta and the lex talionis of an eye for an eye. After all, Judge Aquilina literally invoked lex talionis by saying she wished she could make Nasser himself endure what he had done to his “patients.” And while she also pointed out that the Constitution forbade it, it’s hard to take her comment as a reminder that our society is better than that. Instead, it reads as an objection to a perceived failure of justice. No doubt there are many who agree, and see the sentence to prison for the rest of his life (where, given how child molesters are treated there, Judge Aquilina will likely get her wish after all) as a failure of justice. But part of the judge’s job is to legitimize the system she operates as one that is adequate to rechannel our worst vigilantist impulses through regular and impartially conducted procedures to humane, or at least not cruel and unusual, results. Every criminal punishment is inadequate in the sense that no public shaming, fine or imprisonment will ever undo the harm the crime inflicted. Indeed, most criminal punishments (unlike, say, torts remedies) have little or no compensatory effect. Judge Aquilina focuses on the inadequacy of the punishment the law allows her to impose, not its (admittedly and inevitably limited) adequacy in heaping the greatest available public censure on the perpetrator by condemning him to the greatest punishment the law allows.
If you agree that Judge Aquilina should not have said some of the things she said, you are still left with the question of what, if any, remedy should result. To my mind, this is a genuinely difficult question. Even if you think some of her remarks suggest undue passion or prejudice, or are otherwise inconsistent with whatever moral or rhetorical restraint a judge should exercise at sentencing, the result—even though very severe—seems easily consistent with rational judgment given the terrible circumstances before the Court. In short, Nasser deserved the sentence he got. Do we nevertheless treat this as the kind of “structural” wrong that merits a do-over without indication of its effects on the outcome? Do we leave it to the judicial disciplinary machinery of the State of Michigan, which might well not admonish the Judge for fear of being taken to belittle the survivors and their advocates? Do we treat it as a wrong without a remedy?
Hard cases make bad law.