Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

The Sentencing of Larry Nassar Was Not ‘Transformative Justice.’ Here’s Why.

For those of us who believe our “justice” system must be transformed, moments such as this one are a test of conviction.

Judge Rosemarie Aquilina looks at Larry Nassar as he listens to a victim’s impact statement
Scott Olson / Getty

The Sentencing of Larry Nassar Was Not ‘Transformative Justice.’ Here’s Why.

For those of us who believe our “justice” system must be transformed, moments such as this one are a test of conviction.

On January 24, Larry Gerard Nassar, the former national team doctor of USA Gymnastics, was sentenced to 40 to 175 years in prison for the sexual assault of minors. The sentence was handed down with biting words from Judge Rosemarie Aquilina, after a week of intense and moving pre-sentencing statements from Nassar’s victims. Aquilina noted that if the Constitution did not forbid cruel and unusual punishment, she might have sentenced him to be made a victim of sexual violence. She settled for an unsurvivable prison sentence, saying, to great public applause, “I just signed your death warrant.

Amid our society’s current cultural upheaval around sexual violence, Aquilina struck a chord with many survivors who want and need to believe that justice under this system is possible. By offering the mic to survivors, and by aiming violent, vindictive language at a widely loathed defendant, Aquilina has been rewarded with the status of instant icon. Unsurprisingly, she is also reportedly considering a run for the Michigan Supreme Court. The case launched numerous think pieces, including a misguided, misinformed praisesong entitled, “The Transformative Justice of Judge Aquilina,” by Sophie Gilbert.

Gilbert’s article highlights how this moment challenges those committed to transforming our carceral system — including people, like us, who are committed to justice for survivors of sexual assault and who also believe that prisons are the wrong answer to violence and should be abolished. We decry the system and advocate for change that is long overdue. Yet when that system ensnares people we loathe, we may feel a sense of satisfaction. When we see defendants as symbols of what we most fear, and that which we most greatly despise, we are confronted with a true test of our belief that no justice can be done under this system.

Yet like all tests of faith, this moment calls on us to recommit ourselves to true transformative justice. And to do that, we must remind ourselves what transformative justice is, and why it looks nothing like the civil death that Aquilina delivered last month.

Transformative justice is not a flowery phrase for a court proceeding that delivers an outcome we like. It is a community process developed by anti-violence activists of color, in particular, who wanted to create responses to violence that do what criminal punishment systems fail to do: build support and more safety for the person harmed, figure out how the broader context was set up for this harm to happen, and how that context can be changed so that this harm is less likely to happen again. It is time-consuming and difficult work done by organizations like Generation 5Creative Interventions and the Bay Area Transformative Justice Collective. It is not grounded in punitive justice, and actually requires us to challenge our punitive impulses, while prioritizing healing, repair and accountability.

A truly transformative justice would mean that a single survivor coming forward to tell their tale of harm years ago would actually have been believed (the first time). We would immediately focus on addressing the harms perpetrated, centering on the concerns and experiences of the person who was harmed. Next, we would also focus on the person responsible for the harm — but without disregarding his or her humanity. This means we have to acknowledge the reality that often it is hurt people who hurt other people. Understanding that harm originates from situations dominated by stress, scarcity, and oppression, one way to prevent violence is to make sure that people have support to get the things they need. We must also create a culture that enables people to actually take accountability for violence and harm. The criminal punishment system promises accountability for violence, but we know that in actuality it is a form of targeted violence against poor people, people with disabilities, and people of color, and doesn’t reduce violence in our society.

Real accountability calls us to respond to harm that occurs because the person responsible was struggling with mental illness by providing high quality treatment. If violence emerged because of poverty and desperation, then creating survivable conditions might prevent future harm. If violence originated because of unexamined misogyny or sexism learned in the family or broader culture, a community process that invites the person responsible to examine that would be more likely to lead to a positive outcome than incarceration in a cell, where the person is likely to experience more violence.

Finally, in a truly transformative model of justice, we would not allow those harms to be shielded by powerful people or institutions. We would insist on focusing not just on individuals but also the institutions and structures that perpetuate, foster, and maintain interpersonal violence. In Nassar’s case, this would include the administrators at Michigan State University and USA Gymnastics who ignored initial disclosures of sexual assault and took no actions to stop his violent behavior. Judge Aquilina’s ruling accomplished none of these aims.

The criminal punishment system promises accountability for violence, but in actuality it is a form of targeted violence against poor people, people with disabilities, and people of color, and doesn’t reduce violence in our society.

But, some say, even if the system itself is unjust, it can sometimes deliver justice — and we ought to recognize that justice when it comes. Let us be clear: Our punishment system, which is grounded in genocide and slavery, and which has continued to replicate the functions and themes of those atrocities, can never be made just. Prisons are an iteration of structural racism in the United States, which allows some people to be treated as less than human, and therefore reasonably subject to all manner of exploitation, torture and abuse. This is the legacy of anti-Blackness in the United States. Even when the system ensnares a non-Black person, the prison industrial complex remains a structurally anti-Black apparatus, firmly rooted in the United States’ ongoing reliance on the financial exploitation and social control of Black people. This can be seen in persistent disparities at all levels of the criminal legal system, from arrest through imprisonment.

Even if we firmly believe Nassar’s sentence unjust, we may ask ourselves: Should we just sit by as the public applauds Nassar’s sentence? Who wants to be considered an apologist for a serial rapist? After all, the reality is that most people who rape will never go on trial, let alone be convicted and sentenced to prison. So we wonder if we should just keep quiet and let the system “work” this time by imposing a draconian sentence.

But perhaps above all, we may fear the questions we will be asked if we stand up against Nassar’s sentence. What will we say when people who are already hostile to transformative justice aggressively demand a “solution” for addressing Nassar’s abhorrent violent actions? “What’s your alternative to a death sentence for someone who commits acts as heinous as Nassar’s?” some will spit out derisively, as if the onus to create a safer society falls on the shoulders of single individuals rather than being a collective project decided together in community. One might be tempted to throw one’s hands in the air and say, “You know what, the devil you know is better than the devil you don’t.” In other words, we remain stuck with the ineffective prison system as the remedy when sexual violence, for example, is perpetrated.

This is not viable in our opinion. We must depart from the crowd that applauds the signing of “death warrants.” Now, more than ever, we must call people toward a new vision of justice.

Granted, our vision is incomplete. There is no roadmap for justice, because under this system, we have never seen it. But the current system has been thoroughly mapped, and it has already failed. While we all harbor fears about what it means for “dangerous people” to walk among us, we know in truth that such people have never ceased to walk among us, and that the purpose of the carceral system has never been to sort the “good” from the “bad.”

We must also acknowledge that we simply do not know, and cannot know, what the occurrence, prevention or resolution of harm could look like in our society under more just conditions. So long as the structures that instill desperation are maintained, some people will be shaped by desperation. And so long as we perpetuate mass criminalization — a security blanket with all the substance of “The Emperor’s New Clothes” — we will not know what it would look like to live differently. If our rage and disgust can prompt us to endorse the violence of the carceral state, how can we expect to reach those who are skeptical of our view?

Transformative justice is comprised of creative and dynamic experiments happening across the world. It is also a revival of tools that were taken from us by a society that did not trust our ability to resolve harm without brutality. As educator and organizer James Kilgore has written, “Pre-1824 tribal courts embodied a restorative approach that greatly differed from the punitive, adversarial system of the United States.” Deeming Native justice insufficiently punitive, and therefore uncivilized, the federal government assumed jurisdiction over all violations of the Major Crimes Act on Native reservations. The results, for Native people, have been devastating, as difficult conditions on reservations easily facilitate the criminalization of Native people, fueling high rates of incarceration.

That doesn’t mean all hope is lost. Efforts like the Hollow Water First Nations Community Holistic Healing Circle, a community justice initiative geared toward reconciliation, illustrate that reclamation is possible. By establishing a healing justice practice grounded in Anishnabe teachings, the Hollow Water community has developed a means to interrupt cycles of intra-community abuse and incarceration. But as with so many justice infrastructures lost to colonial violence, we are not simply talking about the need to dismantle a larger system. We are talking about a process of construction and creativity, for all peoples whose systems of justice were upended or eradicated by the American political project.

Neutralizing perceived threats, in an endless game of legal whack-a-mole, is not a path to safety. To create safer environments, people and circumstances must be transformed. We cannot discuss policing, prosecutions, judges or prisons system without acknowledging the prison system as a mechanism of social death and exploitation.

When you say, “What would we do without prisons?” what you are really saying is: “What would we do without civil death, exploitation and state-sanctioned violence?” That is an old question and the answer remains the same: Whatever it takes to build a society that does not continuously rearrange the trappings of annihilation and bondage while calling itself “free.” To know freedom or safety, and to make peace with our own fears, passive punishments must be replaced with active amends and accountability. Transformation is possible, but it will not be televised, and it will not be facilitated by the likes of Judge Rosemarie Aquilina.

Pennsylvania Man Dies In Jail After Guards Allegedly Ignored His Opioid Withdrawal Symptoms

A Facebook post by the girlfriend of Frederick Adami’s cellmate in Bucks County Prison. Adami died in his cell.

Pennsylvania Man Dies In Jail After Guards Allegedly Ignored His Opioid Withdrawal Symptoms

Frederick Adami, a 52-year-old resident of Morrisville, Pennsylvania, died from apparent opioid withdrawal early in the morning on Sunday, January 28, while in custody at the Bucks County Correctional Facility.

Adami’s cellmate, Bruce Gramiak Jr., made a phone call to his girlfriend, Melissa Weitzel, the night before Adami’s death to tell her that his cellmate was displaying symptoms of opioid withdrawal. “We’ve talked every day since he’s been inside and on Saturday night, he said he got a new cellmate who was in really bad shape,” Weitzel, who lives in Bensalem, told The Appeal. “He was throwing up a lot and going to the bathroom and puking all night.”

Weitzel posted her boyfriend’s account to Facebook on the evening of Adami’s death. “At 6:30 in the morning, my boyfriend was woken up by the guards to his cellmates lifeless body on the floor below him,” she wrote. “Keep in mind, there is fecal matter and throw up literally all over the floor and cell and the man is dead.”

A February 2017 investigation by Mother Jones found dozens of cases involving people dying from dehydration due to opioid withdrawal while in jail or prison. “Outside of jails,” wrote Mother Jones’s Julia Lurie, “dying from opiate withdrawal is exceedingly rare because, with few exceptions, it is so preventable. Dehydration, the withdrawal symptom that usually kills people, can be treated with intravenous fluids.” And as Georgetown University Associate Law Professor Shon Hopwood wrote recently, “the biggest danger” to prisoners is not assaults from staff or fellow inmates, but lack of medical care.

The Supreme Court has weighed in on health care in prisons as well. “A prison that deprives prisoners basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society,” Justice Anthony Kennedy wrote in favor of Brown v. Plata, a 2011 Supreme Court decision that ruled California’s overcrowded prisons violate the Eighth Amendment’s ban on cruel and unusual punishment.

Opioid withdrawal may also trigger other health conditions to flare up, especially for an older man like Adami. Weitzel told The Appeal that her boyfriend repeatedly asked guards and even one of the facility’s nurses to help Adami. “He said they basically ignored him, and told him not to worry about it.” Adami is the eighth prisoner to die inside the Bucks County Correctional Facility since 2006, according to the Courier Times, a local Bucks County newspaper.

Adami was not arrested for any criminal act, according to Larry King, a spokesperson for the Bucks County DA’s office. “He had two outstanding domestic relations warrants,” King said, adding that typically means money is owed for child support or some other civil payment. “He was sent to prison to be held for an appearance that was scheduled for Monday morning. Unfortunately he passed away in the interim while incarcerated.”

Adami leaves behind five children. His family did not immediately respond to a request for comment.

Bucks County Coroner Dr. Joseph Campbell told The Appeal that an autopsy was completed and the cause of death was inconclusive, pending further testing and investigation. Asked specifically whether dehydration from opioid withdrawal is on the table, Dr. Campbell said there are a number of open possibilities for Adami’s cause of death.

If the facility is found to have neglected him, his family could potentially sue. County jails and prisons have in the past paid millions of dollars to settle lawsuits involving prisoners dying from withdrawal while in custody.

More in Explainers

The Misguided Call for Harsher Punishments at the Heart of the Judge Persky Recall Effort

The Misguided Call for Harsher Punishments at the Heart of the Judge Persky Recall Effort

In a series of tweets, New York Senator Kirsten Gillibrand recently praised the recall effort against Judge Aaron Persky, who sentenced Stanford University swimmer Brock Turner to six months in prison after Turner was convicted of sexually assaulting a woman during a college party.

The recall effort is misguided. It’s unlikely to result in the changes its most ardent supporters desire around increased accountability and deterrence for those who commit sexual assault. But it will likely lead to harsher sentences.

Led by Stanford Law Professor Michele Dauber, the recall campaign claimsthat Judge Persky granted leniency to Turner because he was white and privileged. Assuming that’s true, the recall effort doesn’t address that problem. If it did, the campaign would call for Judge Persky to sentence other non-white, less privileged defendants to the same time as Turner.

Nor will the campaign achieve greater accountability. Turner was charged, convicted, and sentenced. As Meaghan Ybos, founder and executive director of People for the Enforcement of Rape Laws, noted, the justice system held him accountable in a way that doesn’t happen in many sexual assault cases.

But the campaign’s main criticism is that Judge Perksy gave Turner “too lenient a sentence.” Arguing that a two-year sentence was appropriate, Professor Dauber faults Judge Persky’s failure to send Turner to prison for an additional 18 months.

The campaign’s message to other judges is that if they sentence too leniently, they will be removed from office. As my colleague Paul Butler noted, when other judges hear that message, it is unlikely the higher sentences will fall on “white boys at frat parties.” When the system becomes more punitive, minorities and the poor usually receive the brunt of it. That’s why 89 law professors, the Santa Clara County District Attorney, and public defenderoppose the recall.

Despite this risk, Professor Dauber leads the campaign because she contends that a two-year sentence would deter other young men from committing sexual assault. In that way, she echoes Attorney General Jeff Sessions’s general view on deterrence: When we punish one person harshly, it deters others. This argument is often used to justify imposing longer sentences on defendants.

But research shows that increasing the length of an individual sentence is unlikely to create an effective deterrent. If the media publicity surrounding Turner’s case, his conviction, and his sentence to life on the sex offender registry don’t deter other students from committing sexual assault, then it’s hard to believe they would be deterred had Turner received another 18 months in prison.

We tend to measure punishment solely by the length of incarceration, and calls for harsher sentencing are rarely accompanied by an appreciation of the full punishment actually imposed.

Turner will be on probation for another three years. If he makes a mistake, he will serve a 14-year prison sentence. Turner will also spend a lifetime on the sex offender registry. His neighbors will be alerted anytime he moves. He can be barred from living near schools, parks, and other public areas. Anytime he travels to another state, he must comply with detailed regulations about how long he can stay.

Turner will face countless collateral consequences, including lawful discrimination in housing and employment. These consequences will continue to apply even if he matures, ages out of crime, and exhibits rehabilitation.

Running an internet search on someone you meet is common in today’s culture. It will be difficult for Turner to have a normal romantic relationship once someone searches his name online. If he is fortunate enough to have children, he will be unable to participate in their afterschool activities, and his kids are likely to be bullied by other kids about their father’s conviction. His actions will continue to haunt him and his family, and the punishment will never end.

Maybe that’s what he had coming. The crime he committed was vile and the victim will continue to suffer the effects of the sexual assault. But the recall campaign isn’t grappling with any of these difficult realities about punishment. Professor Dauber has a personal relationship with the victim and thus her instinct is understandable. The temptation to seek vengeance is one of which we are all guilty; it is also one of the primary drivers of mass incarceration.

If we’re going to impose stiffer sentences, we should consider the full range of punishment. I served almost 11 years in federal prison, a horrible place where the threat of violence or dying from lack of medical care was always present. But if given a choice between serving 18 months in prison or facing the full range of consequences that Turner will endure long after his release, I’d easily choose the 18 months.

Brock Turner will receive a lifetime of punishment. Unhappiness with his prison sentence is not an adequate reason for a crusade that will lead to harsher sentences for others, ultimately falling on the most vulnerable.

When those who know the criminal justice system say this recall campaign will be a net loss for justice, you’d think the recall supporters would reconsider. And if the criminal justice reform community can’t convince a liberal law professor from Stanford and a Democratic senator from New York to reconsider their call for harsher sentences, then we have a long road ahead to convince the rest of America to end practices leading to mass incarceration.

Shon Hopwood is an associate professor of law at Georgetown University Law Center and co-founder of Prison Professors L.L.C.

More in Podcasts