In the days since Supreme Court nominee Brett Kavanaugh was first accused of sexual assault, a small legion of conservative politicians and pundits have adopted an unusual defense, opting not to deny the charges, but instead to argue that Kavanaugh’s age at the time of the assault should exonerate him.
Dana Rohrabacher, Republican representative said“…he’s a perfect candidate, and what do they say? ‘Well, in high school you did this.’ High school? Give me a break!” Jonathan Zimmerman, USA Today said “Kavanaugh was a teenager at the time… and teens do stupid, dangerous and destructive things.” Stephen Miller, Fox News said “It was drunk teenagers playing seven minutes of heaven”. Bari Weiss, New York Times said “Should the fact that a 17-year-old, presumably very drunk kid, did this, should this be disqualifying?” And, showing an incredible lack of self-awareness, Joe Walsh, former Republican representative: “If stupid, bad or drunken behavior as a minor back in high school were the standard, every male politician in Washington, DC would fail.”
Whether or not the accusations are true (and they do appear to be credible), this line of defense echoes a larger trend in the American criminal justice system: only the ultra privileged get to use youthful innocence as an excuse.
Consider the cases of Jamie Arellano, a sixteen-year-old undocumented Mexican immigrant, and Ethan Couch, a wealthy white sixteen-year-old. Both drove drunk, crashed their vehicles and killed multiple people (Jamie two, Ethan four). Jamie was tried in adult court and sentenced to twenty years. Ethan was tried in juvenile court, and argued that his immense wealth and privilege had distorted his view of the world in such a way that he could not tell right from wrong. He received a two year sentence.
Consider the cases of nineteen-year-old Brock Turner, an affluent white swimmer, and nineteen-year-old Corey Batey, a black football player. Both were convicted of brutally raping unconscious women. Turner was sentenced to six months in jail, as the judge cited his intoxication, youth and potential for growth as causes for leniency. Batey was sentenced to a minimum of fifteen years.
Consider Cameron Terrell, a wealthy white teenager who moonlighted as a crip. In 2017, he drove two fellow gang members into rival territory, where they shot and killed a man they mistook for a member of another gang. Terrell’s legal defense claimed his gang life was a “fantasy world,” and that he was unaware of his passengers’ homicidal intent. They successfully portrayed Terrell as a naive adolescent who was in the wrong place at the wrong time. He was acquitted on all charges. The two other perpetrators, both black and two years younger than Terrell, look likely to be convicted.
Unfortunately, the racialized treatment of children is far from anecdotal. In school, children of color are disproportionately disciplined, expelled and arrested. Studies have found that cops generally view black teenagers as less innocent than white teenagers. Cops, as well as the general population, tend to overestimate the age of black children when compared to white children. Black and white teenagers commit crimes at roughly the same rate, but black teenagers are arrested more than twice as often as white teenagers. Research suggests that after arrest, prosecutors are more likely to send black children to adult court than their white counterparts. Sentences in adult court are generally more harsh than sentences in juvenile court, and are significantly longer for black minors than white minors. These racial disparities have far- reaching ripple effects: criminal records follow children into adulthood, making it harder to access, among other things, employment, housing, welfare and education. Additionally, when applying to jobs, research shows that having a criminal record is more damaging to black applicants than white applicants.
The millions of black and brown children affected by these systemic discretions aren’t afforded the privilege of youthful innocence. For Brett Kavanaugh, Brock Turner, Cameron Terrell, Ethan Couch and so many others who lead lives of inordinate privilege, youthful innocence is a shield, which not only protects them from repercussions, but prevents them from having to take responsibility for their actions.
Harry Zehner is a contributor for The Daily Campus. He can be reached via email at firstname.lastname@example.org.