Brett Kavanaugh, Teen Crime & The Trajectory of Juvenile Justice Reform.

Some thoughts on the budding controversy surrounding United Supreme Court nominee Brett Kavanaugh and his alleged sexual assault of Christine Blasey Ford over 35 years ago when he was 17 years old.

Some thoughts on the budding controversy surrounding United Supreme Court nominee Brett Kavanaugh and his alleged sexual assault of Christine Blasey Ford over 35 years ago when he was 17 years old:  

I don't believe what a person did at 17, no matter how serious or traumatizing, is relevant whatsoever to their capacity or qualification for any job in their adult life, even if that job is justice of the Supreme Court.

We are in a crossroads moment of criminal and juvenile justice in this country, where the trajectory on juvenile justice is changing, where we have finally recgognized that children and teenagers, even privileged white ones, are different, that childhood matters.  Even the Supreme Court, in various decisions, has noted teenagers and their “ ‘lack of maturity' ” and “ ‘underdeveloped sense of responsibility' ” lead to recklessness, impulsivity, and heedless risk-taking.”  They have found that because a child's character is not as “well formed” as an adult's, his traits are “less fixed” and his actions are less likely to be “evidence of irretrievabl[e] deprav[ity].”

We have seen various reforms, in California at least, that have peeled back the previously unfettered power of prosecutors to charge minors as adults, to define young people by the worst thing they ever did as a child.  After years of  demanding no more adult court for our children, no more adult prisons and sentences for them, California voters passed Prop 57 requiring a judicial transfer hearing before a juvenile could be prosecuted in adult court and more recently California legislators passed SB 1391 ending the prosecution of 14 and 15 year old children in adult court.  

So it has been deeply troubling that advocates for criminal and juvenile justice reform, particularly those who believe in the end of charging kids as adults, assert that Kavanaugh's conduct, true or untrue, as a teen over 35 years ago has any bearing on his ability to serve on the Supreme Court. We can't in one breath call for the end of prosecuting teens as adults and then in another seek to disqualify Kavanaugh from the Supreme Court on the basis of teenage criminality. It's arguably inconsistent, counterproductive messaging. 

It's a terrible precedent to set, especially for the clients I represent, if we arbitrarily decide that teenage conduct is relevant to someone's capacity and qualifications for jobs and positions they seek as adults or that something a person did as a teenager is a relevant line of inquiry in an interview for an adult job.  In as much, Kavanaugh shouldn't have had to answer any questions about his alleged teenage conduct at the confirmation hearings; it should've been off limits just like my clients' juvenile criminal histories should remain confidential.   

None of this is to say that what happened to Ms. Ford is justified, minimal or not life altering; sexual assault forever leaves deep wounds that fester and perpetuate, that never truly heal.  Nor is this an endorsement of Kavanaugh for the Supreme Court; I don't know enough about his legal track record or his perspectives to opine about whether he is qualified to serve on our highest court or whether he would ultimately enhance criminal justice reform and promote the preservation of our constitutional rights.  This, instead, is about how we handle, adjudicate, receive and treat juvenile crime as a country.  Ultimately, Kavanaugh's qualifications for the position, just like my former juvenile clients' fitness for adult employment they seek, should be evaluated independent of his teenage crimes or conduct, regardless of how serious or troubling they might be.