I am an attorney, and I have spent much of my career representing teenagers accused of crimes. Most of them were poor children of color; none of them attended Georgetown Prep. But they do have something slightly in common with Brett Kavanaugh: being judged today for something they allegedly did when they were adolescents.
I am not here to add my voice to the many opinions already expressed about whether Judge Kavanaugh sexually assaulted or abused Christine Blasey Ford when he was 17 years old and she was 15. As a career-long defense attorney, I understand both the harm that can come from assuming guilt too quickly and the many valid reasons survivors may be reluctant to report crime. What strikes me most in the fallout surrounding these allegations is the number of voices — most notably conservative politicians and lobbyists — who insist that, even if he did commit this offense, he should not be judged now based on a “youthful indiscretion” that happened so many years earlier.
In some ways, they may be right. There is a large, well-documented and growing body of scientific research and evidence showing that people can (and often do) change very much after age 17 and that teenagers should not be held culpable for their actions in the same way as adults. (This is not to suggest that they shouldn’t be held culpable at all.) But that’s not the way the law works, in Minnesota or most of the country. If Brett Kavanaugh were 17 today and his accuser came forward with these allegations, he would be presumptively tried in adult criminal court, rather than juvenile court. If he were convicted, he would face the possibility of a serious prison sentence. He would be required to register as a sex offender for a minimum of 10 years, and possibly longer. He would be barred for life from pursuing a wide variety of licenses and professions, including most likely the legal profession. He would almost certainly never have the chance to become a U.S. Supreme Court justice.
Most of these consequences are the result of dramatic changes in the juvenile and criminal legal systems over the past several decades to make our laws measurably more punitive than they were when, for example, Kavanaugh actually was a teenager. And many of these changes were enacted at the behest of conservative lawmakers, much like those who now find themselves tempted to dismiss Judge Kavanaugh’s alleged behavior as, in the words of one supporter, “rough horseplay.” These harsh laws have largely not ensnared privileged young men and women attending expensive preparatory schools. Instead, they have condemned and marginalized for life children like my former clients, whose skin color and economic status contributed to the presumption that they were predators who deserved to be locked away, rather than children who could grow and change.
The Supreme Court has, in recent years, been asked to address a number of legal questions regarding whether teenagers convicted of crimes should be subjected to the same penalties and consequences as adults, and the conservative voices on the court have consistently answered those questions with a resounding yes. I don’t know whether Kavanaugh will be confirmed as the next justice of this court. But if his past is redeemable, why not the many other adults who are still paying the consequences of their teenage actions?
Rachel Moran is an assistant professor of law at the University of St. Thomas School of Law, and founder of the law school’s new Criminal and Juvenile Defense clinic. The views expressed here are her own.