Those calling for forgiveness for Brett Kavanaugh are ignoring their own criminal justice system
Ever since Christine Blasey Ford alleged that Brett M. Kavanaugh sexually assaulted her when they were teenagers, supporters of Judge Kavanaugh’s Supreme Court confirmation have suggested that the alleged act’s relevance is diminished by the fact that he would have been 17 at the time. “I’d hate to have somebody ask me what I did 35 years ago,” said Senator Chuck Grassley of Iowa, who heads the Judiciary Committee and who turned 50 in 1983.
But so much of the our criminal justice system today revolves around punishing people for decades—if not for life—over acts that they commit as children and teenagers. Whatever you think of the relevance of such suggestions to Kavanaugh’s confirmation, there are many opportunities today for the people voicing them to speak just as loudly about the fate of young people who face incommensurably worse fates. In every state, there are provisions allowing for children to be tried as adults under certain circumstances. But politicians––even actors who set out to reform the system––consistently forego these opportunities. At a time of across-the-board questioning of many aspects of the criminal justice system, support for policies that would treat children like children is still extremely rare.
Kavanaugh’s presence on the Supreme Court could narrow openings to change how children and teenagers are treated. Thirty states still allow juveniles to receive a sentence of life without the possibility of parole, the Sentencing Project has documented, even as the Supreme Court limited this sentence’s scope in a series of decisions over the last decade. In 2012, the court struck down mandatory life without parole sentences for juveniles in Miller v. Alabama, but the court’s balance on youth sentencing cases could flip if Kavanaugh replaces Anthony Kennedy. “Kavanaugh’s confirmation would abruptly stall further progress” on “issues of prisoner rights and excessive punishments,” Kyle Barry writes in an article on Kavanaugh’s jurisprudence. [Kyle Barry / The Appeal]
Some states have made it more difficult to charge minors as adults in recent years, with growing recognition that this practice is ineffective and that brains develop for far longer. But thousands who are under the age of 18 continue to be prosecuted outside of the juvenile justice system. In Grassley’s Iowa, 16- and 17-year-olds who are charged with a set of offenses that includes sexual assault are automatically treated as adults. Even the more ambitious reforms contain many qualifications. In the wake of New York’s 2017 reform raising the age of criminal responsibility to 18, Eli Hager reported for the Marshall Project on the many circumstances under which juveniles would still face adult courts. “Even 14- and 15-year-olds are tried as adults in New York if they are accused of one of more than a dozen specific felonies, from murder to burglary to possession of a weapon on school grounds,” Hager wrote. The law was crafted as though people felt “like we gotta do it but we really, really don’t want to do it,” state Senator Kevin Parker said at the time. [Eli Hager / Marshall Project]
Many candidates who ran for prosecutor or attorney general on reform platforms this year—including Wesley Bell in St. Louis County, Kathy Jennings in Delaware, and Diana Becton in Contra Costa County—left the door open to prosecuting some minors as adults when asked about this issue directly. One candidate who committed not to was Pamela Price, who lost Alameda County’s district attorney election in California’s June primary. “I pledge not to prosecute any youth under the age of 18 as an adult,” Price had said during the campaign, citing a study that found that “in Alameda County, Black youth were 65 times more likely and Latino youth were 27 times more likely to be prosecuted as adults than White youth.”
Children convicted of a range of sex offenses are placed on registries for decades if not for life, with intense restrictions and disclosure rules that impede their access to employment, housing, and education. Recent efforts have shrunk registries, like California’s new law ending some people’s lifetime registration requirement. But even officials who set up an opening for reform engage in dilatory tactics. In 2016, the Connecticut legislature instructed the state’s Sentencing Commission to study changes to its sex offender registry, but it then did not act on the commission’s recommendations for ways to shrink the registry by a deadline earlier this year. “Currently Connecticut does not allow offenders to apply for removal from the registry, while virtually every other state does,” the Connecticut Law Tribune writes. [Editorial Board / Connecticut Law Tribune]
A handful of states disenfranchise people with felony convictions decades after their sentences are complete. “I finished my sentence—including probation—in February 2000,” a disenfranchised Floridian named Chuck Flagler told The Ledger. “I applied for a reinstatement hearing in October 2008 and received a letter in June 2011 saying my application was forwarded to the Florida Parole Commission. I still don’t have a hearing date.” In Iowa, Terry Branstad issued an executive order on his first day as governor in 2011 that ended the automatic process by which state residents had their voting rights restored upon completion of their sentence. Since then, no Iowans can regain their rights—even 35 years or more after their sentence is over—unless they personally petition the governor’s office and are approved. And that’s strikingly rare: Branstad restored the rights of only 206 individuals over a period of six and a half years, a drop in the bucket compared with the 24,000 Iowans that the Sentencing Project estimated were disenfranchised in 2016 despite having completed their sentence.
Of course, the model of perpetual punishment comes from the top. President Trump, who defended Kavanaugh this week, famously bought full-page ads in 1989 demanding that a group of falsely accused Black and Latinx teenagers known as the Central Park Five be executed. He did so within two weeks of their arrests. The five teenagers were all 14, 15, and 16.