But supporters of short people say it's about time someone recognizes the unique challenges they face.
Cheyenne County District Judge Kristine Cecava issued the sentence Tuesday. She told Richard W. Thompson that his crimes deserved a long prison sentence but that he was too small to survive in a state prison.
Though he could have been sentenced to 10 years behind bars, he ended up with 10 years of probation instead. On Thursday, the state's attorney general, Jon Bruning, promised to appeal within two weeks, calling the sentence far too lenient.
"I'm concerned about the message this sends to victims and perpetrators," said Marla Sohl with the Nebraska Domestic Violence Sexual Assault Coalition, adding that it shows more concern is being placed on the criminal and his safety in prison than the victim.
But Joe Mangano, secretary of the National Organization of Short Statured Adults, agreed with the judge's assessment that Thompson would face dangers while in prison because of his height.
"I'm assuming a short inmate would have a much more difficult time than a large inmate," said Mangano, who is 5 feet 4 inches tall. "It's good to see somebody looking out for someone who is a short person."
Thompson, 50, had sexual contact over a couple of months last year with a 12-year-old girl, said Sidney Police Chief Larry Cox. He was sentenced on two felony sexual assault charges.
As part of the probation, he will be electronically monitored for the first four months and was told never to be alone with someone under age 18 or date or live with a woman whose children were under 18. He was also ordered to get rid of his pornography.
Thompson's attorney, Donald Miller, had no comment on the ruling. Cheyenne County Attorney Paul Schaub, who prosecuted the case, did not return a call seeking comment. Cecava did not return a message seeking comment.
The judge's reasoning confounded Amy Miller, legal director for the Nebraska chapter of the American Civil Liberties Union.
"I have never heard of anything like this before," she said.
No one has ever come to the ACLU to complain of height discrimination, she said. And using Thompson's height as a reason to avoid sending him to prison is surprising, because neither the U.S. nor state constitution provides protections based on physical stature, she said.
A spokesman for the prison system said Thompson's height would not put him at risk among the state's 4,400 inmates. There are protections available in prison to help inmates who feel threatened, prison spokesman Steve King said, but to his knowledge, no one has ever taken advantage of them based on fears related to their height.
"He's not the shortest guy we have in prison," King said. "We've got some short guys that are as tough as nails. We've got people from all ages, physical stature of all sizes, in general population."
State Sen. Ernie Chambers, a longtime critic of judges, said he was baffled by the sentence.
"If shortness is an excuse and protection from going to prison, short people ought to rob banks and do everything else they would wind up going to prison for," Chambers said. "We're talking here about a crime committed against a child, and shortness is not a defense."