Friday, October 12, 2018

What Justice Kavanaugh Can Do To Redeem Himself

By: Christopher Hawthorne

This article originally appeared in The Daily Journal.

I am the director of the Juvenile Innocence & Fair Sentencing Clinic at Loyola Law School, Los Angeles. My students, staff and I represent people in the California prison system who committed serious crimes as children. We petition for resentencing, gather mitigation evidence and represent our clients when they stand for parole. Nearly all of our clients are “lifers.”

You might say I have a rooting interest in the redemption of people who, like now-U.S. Supreme Court Associate Justice Brett Kavanaugh, have done bad things as children.

In California, juvenile offenders stand for parole in a special kind of hearing, called a youth offender parole hearing. In this hearing, juvenile offenders — no longer children, but now age 30 through 50 — discuss their childhood crimes, their behavior in prison and their plans for release.

A parole hearing, however, is not a free-for-all therapy session. My clients are there for a very specific purpose. They must persuade the Board of Parole Hearings that they deserve a certain result: freedom.

There are no rules of evidence at a parole hearing, no burden of proof. The result is entirely in the hands of two commissioners. The commissioners make findings and decisions based on their sense of our clients’ credibility and, in particular, how mature they are, how thoughtful, how they manage their anger and, most importantly, whether they take responsibility for what they did as children. Childhood, for the parole board, goes up to age 25.

Sound familiar?

My clients must describe in detail what they did — and not just their crimes. They must describe who they were as children, who they are now and why the difference means freedom. Everything is framed in the language of choice, even things they did when they were as young as 10 years old. Minimizing is prohibited. Outraged denial will get them a swift finding of unsuitability and three to 10 more years — not in the D.C. Circuit, but in the California prison system.

Well, you might say, that’s only right: These are people who committed serious crimes. But the process isn’t confined to the guilty. Even clients with credible claims of innocence have to go through this same process. And when I say credible, I mean a pretty good case, with substantial evidence, not just, “I don’t remember, so it didn’t happen.”

My clients don’t have to talk about a crime they didn’t commit, but they do have to “say they’re sorry” for something. For being wild; for running the streets; for a string of petty offenses; for hanging out with a gang. Even when they didn’t commit any crime.

Nonetheless, most of my clients — including the innocent ones — still think of the parole process as a valuable one. Yes, it feels unfair that something you did as a child is called a “choice” when you felt like you had no choices. But that’s what you do as an adult: You take responsibility. You say you’re sorry. You own up to things you didn’t think were wrong at the time because with maturity, you realize your wild teenage self was pretty destructive. You can contextualize your behavior, but the best thing you can do is look at your child self through your adult eyes and say, “Yes, I hurt someone.” And responsible adults try to address the hurt they’ve caused as children.

One of the unheralded advantages of privilege is the stuff you can get away with. When you hold noisy parties, police cruisers are not patrolling your Maryland beach house to see if sexual assault is taking place upstairs. You can consume illegal drugs, as long as you do it on your own private property. When you get arrested, droves of people beg the judge not to destroy your “promising future.” Sometimes, you even get that benefit when you are 53 years old.

My clients never received that benefit. Nobody thought they had “promising futures.” Everybody believed their accusers. It seemed only right and natural that they deserved a lifetime in prison, just as it seemed right and natural that Brett Kavanaugh deserves a lifetime on the U.S. Supreme Court.

But the reason my clients have a future at all is thanks to the Supreme Court and, in particular, Associate Justice Anthony Kennedy — Justice Kavanaugh’s predecessor. It was Justice Kennedy who initiated the prohibition of extreme sentences for children because of recent science showing that the juvenile brain doesn’t process moral or causal information like an adult brain. For nearly 30 years, Justice Kennedy was a swing vote for thoughtfulness and our evolving standards of decency. His voice will be missed on the court; it is painful to speculate how much.

Justice Kavanaugh will never have to stand for parole. He has lost his chance to say, in public, how sorry he is for what he did to Christine Blasey Ford and Deborah Ramirez and others whose names we may never know. But he hasn’t lost his chance at redemption. Because children have their whole lives to take responsibility, think like adults and redeem themselves. They can learn compassion, humility and greatness of spirit at any age, even in their 50s. I have had clients who took that long, and their turnaround was both beautiful and heartbreaking.

As a Supreme Court justice, Brett Kavanaugh will have to rule on the fate of people like my clients — and not just my clients, but all of the dispossessed. Maybe, having gone through this hearing, he will understand how much he shares with these people, how much we all do. He not only sits in judgment on them, but in a very real way, he’s one of them. I hope that this experience has changed him. Maybe not right away. But then, he has a lifetime to seek redemption.

Tuesday, October 2, 2018

Mark Judge Didn’t Help Christine Blasey Ford in the 1980s, But He Can Help Her Now

By Professor Maureen Johnson

This article originally appeared in The Daily Journal.

Dr. Christine Blasey Ford’s testimony about Supreme Court nominee Brett Kavanaugh is as remarkable for what she asserts Kavanaugh did as for what she acknowledges Kavanaugh did not. More particularly, Ford doesn’t claim that she was raped by Kavanaugh. She testified that he stopped short, in part due to admonitions by Mark Judge. In fact, Ford testified that there were moments that she believed Mark might come to her aid. Ultimately, Mark threw himself onto the bed as Kavanaugh toyed pulling away Ford’s clothing. The ensuing tumble freed her from Kavanagh’s pin and allowed her to flee from the attack.

Ford’s recollection that Mark urged Kavanaugh to hold back not only demonstrates she made every effort to faithfully and truthfully recollect the incident, but it also provides extraordinary insight into the goings on in that fateful summer in 1982.

Boys will be boys. And in the 1980s, Mark obviously knew the limits. Entitled white boys could get away with the occasional sexual assault of a younger girl in a compromising setting. As Ford testified, the 15-year-old girl in her understandably didn’t want to tell her parents that she had been drinking — albeit one beer — at a home where chaperones were absent and certain of the boys were “stumbling drunk” and on the prowl. In judgmental 1980s speak, she was asking for it. And she wasn’t actually raped. Had she reported to her parents or law enforcement, the slap-on-the-wrist would have been — at best — a stern warning to Kavanaugh to lay off the beer and think twice about forcing himself on a 15-year-old.

That is why Mark urged Kavanaugh to hold back.