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.