One of the most common retorts to arguments against retribution in the legal system is that “we,” meaning criminal defense lawyers and often judges, “would feel differently if it was our child.” And, indeed, we would. Who wouldn’t understand why Randall Margraves went for Larry Nassar?
Had I been in his position, it’s hard to say that I would have shown his restraint. Touch my child? Like most fathers, or mothers, I would take a bullet for my kids. And I would give one as well.
But that doesn’t prove the point. In fact, it demonstrates the opposite. We fully expect, maybe even want, a parent, spouse, sibling, to have a visceral reaction to harm that befalls their loved one. That’s how families survive and protect one another. That’s what love does to a person, and it’s what love should do.
The system isn’t about love, as nice a word as that may be. And it’s not about the consequence of harm coming to a loved one, revenge. The desire for vengeance is completely understandable. It’s not one of our best traits, but it’s one of our most common. If you can’t empathize with the visceral desire for a parent to do what Margraves did here, if not worse, then you need to get your oil checked. There’s something wrong with you.*
And as much as we should all be capable of understanding why a parent would want to exact their own special brand of pain on Nassar, this is why we have a criminal justice system. It’s not about fury and vengeance, but about maintaining a society where conduct that harms others, that society has determined (to the extent this hasn’t been warped by legislative abuse and overreach in pandering to the ignorant demands of constituents) to be sufficiently wrongful that it will not be tolerated.
There is a reason why judges are supposed to be neutral arbiters. It’s detachment from the understandable emotion of a parent that allows a judge to perform the societal function expected of him. The system exists to serve goals, from fairly ascertaining whether an accusation is true no matter how awful the alleged offense or how unsavory the alleged perpetrator, to imposing no harsher punishment than can be legitimately justified to serve society’s interest.
It may be good enough, particularly at this point in time when #MeToo has seized the minds of so many and enabled them to believe that punishment ought to come before conviction, to believe the victims, but judges cannot be so self-indulgent. Society can’t function if a side is picked first and the consequences imposed, only to figure out later that it was a mistake.
Nor can a judge allow herself to indulge in the feelings of the victims and stray beyond the scope of her authority. Condemning the offense is entirely appropriate, but the judge is ethically required to treat everyone before her respectfully. The judge speaks to the individual by the sentence imposed, not by denigrating the person as would a mother or advocate.
There are legitimate purposes to giving people robes and the power to imprison another human being, after they’ve been properly found to have committed the acts society condemns.
- General deterrence
- Specific deterrence
- Isolation
- Retribution
- Rehabilitation
While there is an element of revenge built into the system, retribution, it is only one of the purposes that confers legitimacy on the use of government fiat over the individual. The extent to which vengeance applies is placed in the hands of a person who is not, cannot be, the parent of the victim.
Why? Because there is no parent who can’t appreciate the pain Randall Margraves must have felt knowing that Larry Nassar sexually abused three of his daughters, and understand why he would take the risk of attacking him in a courtroom. But that’s not what the law allows. Then again, Margraves will not be charged for his actions, which is also an understandable exercise of discretion.
In a weird way, what happened in Judge Janice Cunningham’s courtroom showed what’s right with the system. A father did what being a father demanded of him. Lawyers, court officers and a judge did what being detached players in the legal system demanded of them. So yes, we would feel entirely different if it was our daughter, and that’s they way it’s supposed to be.
*Some comments on the twitters chalked Margraves lunge as an example of “toxic masculinity.” In an effort to be unduly kind, I will assume they aren’t parents and suffer from the naive delusion that a mother would be any less protective of, and outraged by, someone committing a heinous crime against their child.
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SHG,
To the extent you assert that the judge did what was demanded of her (“In a weird way, what happened in Judge Janice Cunningham’s courtroom showed what’s right with the system.”), I call bull shit, albeit with respect.
Musgraves’ attack on Nassar was a predictable result of both Michigan judges failing to set in place strict conditions for the giving of victim impact statements, including the length, and manner, of presenting the talks. For example, since the proceedings were televised, and Nassar had expressed a desire to be absent during their presentation, why he was not allowed to view the “victim impact statements” (if he desired) on TV while held in the protective confines of a cell is simply beyond my comprehension.
Notice that it was a defense lawyer who was the first person to physically protect Nassar by knocking the father backward. That Musgraves was able to get so close to Nassar was a security failure of stupendous ineptitude and that failure is the direct non-delegable duty of the judge.
All the best.
RGK
Your point is well taken, and I was remiss in my failure to recognize that the court should have anticipated the potential for a violent outburst and protected against it.
It seems to me that this was theater where the court pandered to the media and the judge is now a media celebrity. No doubt this was unintended but it needs to be fixed.
If it was unintended, then it couldn’t be pandering. You can’t have both.
Unintended by the legislature.
So this was a conspiracy between the dad and judge? That’s…unlikely.
I did not say that.
Then I’m not clear what you’re saying.
I think the legislature wanted to be fair to victims. I doubt they wanted to have a media feeding frenzy. I think the legislature should be able to do the former without enabling the latter. Such as written statements with a maximum of a five minute verbal summary and no TV.
Now I see your point. I wonder if the call for victim catharsis overcame the better sense of not turning the courtroom into a circus? Or this judge, like Aguilina, wanted her close up too.
Margraves was angry at himself for not recognising what must have been, with the benefit of hindsight, obvious signs his daughters had been abused. No coincidence, I believe that an individual so emotionally challenged as to not be able to form an open, trusting relationship with his daughters is also prone to outbursts of macho public posturing. And no doubt his Olympic ambitions for his daughters contributed to his (and other parents) inability to recognise the signs of abuse. His attempted physyical assault merely compounded his failings as a parent — rather than finally put his daughters needs and wishes first, he took an action that very easily could have severely compounded their trauma by landing him in prison at a time they needed a wise, sensible and stable father figure more than ever, all to briefly indulge a violent impulse that would not have looked out of place in a middle school playground. I’m sure the leniency the judge showed was for his daughter’s sake, not Margraves.
So you make up motivations for another person, assume facts you don’t know, create a fantasy and impute it to another guy, then believe your own bullshit and condemn him for it? Did the voices you head when you’re all alone tell you this?
Did I ”assume” that he never detected the abuse his 3 daughters suffered, or if he did, chose to keep his mouth shut because he was more focussed on Olympic glory or perhaps just old-fashioned cowardice? or is that known, established fact? the guy was a day late and a dollar short on being a responsible parent, and yes i ”assume” he felt guilty about that, because the alternative is to believe he was knowingly indifferent.
The problem with putting stuff in writing is that it’s in writing. You don’t get to spin your way out of it.