How the Law Treats Kids Who Didn't Grow Up Like Kavanaugh

The judge’s allies should ask themselves if young offenders in general deserve more leniency.

Supreme Court nominee Brett Kavanaugh testifies during his confirmation hearing on September 5, 2018.
Supreme Court nominee Brett Kavanaugh testifies during his confirmation hearing on September 5, 2018. (Chris Wattie / Reuters)

The scene is familiar: loud music, no parents, and beer. Christine Blasey Ford alleges that, in a Bethesda home in 1982, when she was in high school, then 17-year-old Brett Kavanaugh tried to rape her. Kavanaugh categorically denies the accusation. His staunchest defenders say that, even if the accusation is true, his behavior as a young man should not derail his path to the Supreme Court.

Yet the repercussions many young people—particularly low-income youth of color—might face for the kind of conduct described by Ford are far more severe than a failed nomination. Our current laws and practices ensure that adolescent mistakes have lifelong consequences. People too young to buy cigarettes are regularly subject to adult punishments. There are roughly 1,000 people under 18 in adult prisons, and thousands more over that age serving time for offenses committed in their teenage years.

I don’t mean to adjudicate Kavanaugh’s guilt or innocence, or to judge his qualifications for a lifetime appointment to the highest court in the land. But maybe Kavanaugh’s allies should take this moment to ask themselves if youthful offenders in general deserve more leniency.

Start here: Almost all kids break the law at some point. They might shoplift, violate an open container law, buy drugs, drive dangerously, or get into a fight.

Yet almost all kids outgrow their period of recklessness. Research on adolescent misbehavior clearly points to desistance. At some point, dumb kids start acting like responsible adults. It’s highly unlikely, for instance, that I’ll ever again drive 100 miles an hour on the Mass Pike (sober, mind you) or steal a giant Sunoco flag as a trophy for my dorm room (no comment). Rarely do even serious youthful offenses indicate a criminal future.

The legal establishment understands that fact. A six-three majority of the U.S. Supreme Court (led by Justice Anthony Kennedy, whom Kavanaugh would replace) noted in Graham v. Florida that there are “few incorrigible juvenile offenders [compared to] the many that have the capacity for change.” Criminologists have found an age-crime curve that declines precipitously after late adolescence, confirming the logic of this jurisprudence.

But legislators have yet to undo many of the laws passed in the 1980s and 1990s that encourage prosecutors to come down hard on young people and try them as adults. Every day, kids are shuttled into adult jails, adult courtrooms, and adult prisons.

A report by Neelum Arya at the UCLA School of Law estimated that, in 2016, between 32,000 and 60,000 young people nationwide were held in an adult jail. (The range is wide because states and localities count inconsistently.) At the close of 2016, there were 3,700 people under 18 in adult jails.

In Maryland, where Ford alleges that Kavanaugh sexually assaulted her, there are 33 separate offenses for which prosecutors must charge anyone over 16 as if he or she were an adult, including attempted rape, attempted second degree rape, second and third degree sexual offenses, and attempted second degree sexual assault. This year, Maryland’s legislative committees spiked bills that would have let juvenile courts handle such cases. A young person in Maryland charged—not convicted—as an adult may then be held in an adult jail, where he’s vastly more likely to be raped or otherwise harmed than in a juvenile detention facility.

This approach is both cruel and counter-productive. Young offenders charged as adults aren’t scared straight; the CDC’s Task Force on Community Preventive Services concluded in a 2007 literature review that sending a young person to the adult system generally increases rates of violence among youth.

Convictions in adult courts, even if they don’t lead to prison, have long-lasting consequences. Almost 20 million Americans have felony convictions, impeding their opportunities for employment and housing, and even their ability to vote in many states. People convicted of sex-related offenses may spend their whole lifetimes on a sex-offender registry—and that’s a broad category including not only rape, but also non-violent offenses such as exhibitionism.

Kids who grow up like Kavanaugh—white kids whose parents can afford prep school tuition and, presumably, the services of a good lawyer—rarely experience prolonged contact with the criminal-justice system. Society gives them the benefit of the doubt and takes seriously their protestations of innocence. But most kids don’t grow up like Kavanaugh.