This semester, I am teaching torts and criminal procedure.  Tort law imposes civil liability to redress wrongs that private individuals/entities commit against other private individuals/entities.  Criminal procedure concerns the rights afforded to criminal defendants, including rights against unreasonable searches and seizures, the right against self-incrimination, and the right to counsel.   Both tort law and criminal law involve society’s response to harms, with criminal law’s harms meriting not just civil damages, but imprisonment and sometimes death.  The rationales motivating tort law– compensation, deterrence, fairness, and the efficient administration of the law – are often in tension with one another.  Fairness to a defendant, for example, may thwart the goals of compensation and deterrence.

This week, debates over Judge Rosemarie Aquilina’s handling of Larry Nassar’s sentencing hearing provide strong evidence that our country is deeply divided not just over the purposes of criminal law – incapacitation, deterrence, punishment, and rehabilitation – but over the purposes of criminal proceedings.

In an interview I gave to NPR Phoenix, I explain why I believe Judge Aquilia’s conduct during the sentencing proceedings compromised her role as impartial adjudicator – and may have violated Larry Nassar’s due process rights.  The guilt phase was over, and sentencing proceedings are different than the guilt phase, but Nassar’s sentence had not yet been determined.  Before Judge Aquilina handed down her sentence, while she was still hearing witnesses and weighing the appropriate sentence, she commented (favorably) on witness testimony, made remarks to Nassar lamenting that she could not sentence him to what he really deserved, and allowed witnesses to berate Nassar, calling him pathetic, a monster, a loser, and sick.

In capital cases, where a defendant has been charged with murder, victims testifying during the sentencing phase are not permitted to comment on their opinion of the defendant or their sense of what an appropriate sentence should be.  The Eighth Amendment has been interpreted to limit victim impact testimony in capital cases to the effects of a defendant’s behavior on their lives.  There may not be a constitutional prohibition with what happened during Nassar’s non-capital sentencing, and many believe Nassar would not win an appeal.   However, we should question whether Judge Aquilina’s laudable goal – to give voice to victims, who have not only been abused, but whose stories have been ignored by people in positions of authority – is acceptable in the forum of a criminal trial.

What happened at Nassar’s sentencing presents two problems, neither of which is currently considered unconstitutional but both of which are relevant to considering what is the appropriate role of a criminal trial.  First, Larry Nassar pleaded guilty to seven counts of sexual abuse, but his sentence was likely enhanced by the testimony, not subject to cross-examination, of over 150 other women and girls whose experiences did not form the basis of criminal charges.  Nassar did not receive a trial.  He claims that he pleaded guilty because he had already received 60 years on child pornography charges (an unjustly long sentence for the charge, in my opinion, and several times the federal guidelines range).  At times he was apologetic for what he did, but his letter to Judge Aquilina maintained that he provided legitimate medical treatments, and that patients who once recommended him to others have turned on him because of the media’s portrayal of him.

Imagine for one moment that Nassar is innocent.  I do not believe this to be true (I found this article by a physical therapist who properly administers pelvic floor treatments helpful, in addition to the scores of reports of female athletes and their families).  However, innocent people do plead guilty, and innocent people have been convicted of sexual abuse after suggestible children’s testimony was influenced.  Nassar has not been given much meaningful process, and his sentence may have been enhanced by whatever those who felt victimized by him decided to say during his sentencing proceedings, to a highly sympathetic judge who congratulated them for their testimony.

This may not bother us in this particular case, where no one commenting on the issue is questioning Nassar’s guilt.  But rule of law, and especially criminal law, is built on principles that apply equally to everyone, for the protection of the innocent, whom all mistakenly believe to be guilty.  The high burden of proof beyond a reasonable doubt, the right to counsel, the right to cross examine witnesses, and the right against compelled confessions serve this purpose.  Larry Nassar is almost certainly guilty, and he waived his right to trial, but his sentencing hearing is a testament to the fact that he never actually received meaningful judicial process, just an avalanche of witnesses speaking about uncharged conduct and a judge so hostile that she lost the ability to rise above her feelings when speaking to him.

The second problem with the Nassar sentencing was the use of the hearings as a way to berate, and essentially punish, the defendant.  Watching videos of the Nassar hearings and reading the powerful testimony served to solidify my view that the point of criminal trial proceedings should not be to satisfy vengeance.  Allowing victims to testify about matters beyond the impact of the crimes against them, including pure expressions of contempt and personal characterization of the defendant’s worthlessness, punishes a defendant with testimony that goes beyond what is relevant to determining an appropriate sentence.  These women and girls are absolutely entitled to express these views, and the First Amendment gives them broad latitude to do so.  Their testimony has affected many and highlights another instance of abuse of the most vulnerable in our society.  In the courtroom, however, we should rise above our baser instincts to shame and bully a captive defendant for the heinous, unimaginable crimes he committed.  Judges should limit this type of testimony.  They must be the neutral, unbiased face that civilizes the law and gives it legitimacy and integrity.  If we want to use the law to imprison, and even kill, those who have been convicted of or admitted their guilt to crimes, the law must be fairer, more civilized, and more protective of defendants than we would like it to be in any individual case, even this case.

We do not have to pretend the law is bloodless to require that officers of the court create an environment where decisions are made from reason and principle, not passion and prejudice.