A mere three years ago, Brett Kavanaugh had a full-on meltdown while testifying before the Senate Judiciary Committee about allegations that he committed sexual assault in high school at the age of 17. Red-faced and sneering, overflowing with both indignation and entitled frat-boy rage, Kavanaugh denounced the proceedings, denying the charges—but also suggesting the sentient keg-stand he’d been in high school didn’t define who he’d grown up to become all these decades later.
“If we want to sit here and talk about whether a Supreme Court nomination should be based on a high school yearbook page,” the SCOTUS candidate said at the time, “I think that’s taken us to a new level of absurdity.”
Of course, the “Rich White Boys Will Be Rich White Boys” defense only works for rich white boys. Kavanaugh made that yet more clear last week in authoring the Jones v. Mississippi majority opinion, which bucks previous SCOTUS decisions which established less punitive sentencing rules for juvenile defendants. In a 6-3 vote, Kavanaugh and his fellow conservatives undid all that more humane precedent, essentially ruling that judges can sentence kids—including those younger than Kavanaugh was when he allegedly committed sexual assault without repercussion—to die in jail for crimes they engaged in as minors. This new ruling is guaranteed to harm an unknowable number of young people who become entangled in the criminal legal system. But it will undoubtedly have the most disastrous impact on Black and brown children, who already get screwed over by a system incapable of seeing them as kids.
It is both grim and fitting that the Jones v. Mississippi decision closely follows police killings of Ma’Khia Bryant, a 16-year-old Black girl from Columbus, Ohio, and Adam Toledo, a 13-year-old Latino seventh-grader in Chicago. What cops seem perfectly capable of managing to do for young white mass shooters—that is, take them into custody alive, and occasionally even treat them to fast food on the way to the station—they apparently could not for Bryant, Toledo, or the disproportionate number of Black and brown kids against whom police use force. A study released in late 2020 from Children’s National Hospital researchers found that 12- to 17-year-old Black and Hispanic kids were six and three times more likely, respectively, than white kids to be fatally shot by cops.
As of 2019, of the nearly 1,500 kids serving sentences of life without parole for crimes they committed while minors, a staggering 80 percent are kids of color—more than 50 percent are Black. The Sentencing Project in February 2021 released a study finding that in every state, Black kids are roughly five times as likely to be incarcerated than white kids. (Where violent offenses are concerned, that rises to a difference of seven times.) Native youth are three times more likely than white kids to be held in detention, and “Latinx youth are 42 percent more likely than white kids to be incarcerated.” Though white kids and nonwhite kids offend at similar rates, the latter are “much more likely to face severe consequences than their white peers similarly charged or adjudicated...The disparity is large because of different responses to similar youthful actions.”
There are all kinds of systemic inequalities that contribute to this—Black and brown kids tend to live in neighborhoods that are already overpoliced, for example—but one clear reason for these differences is just that the presumption of childhood innocence isn’t extended to Black kids. From the time they reach age 9 and up, Black boys are seen by white people as significantly older than their real age—by about 4-1/2 years—and less innocent than white peers. A 2017 Georgetown study found the adultification of Black girls as young as 5 years old, a process by which Americans across the board assume that little Black girls “need less nurturing, less protection, to be supported less, to be comforted less, are more independent, know more about adult topics, and know more about sex” than white girls. All this has everything to do with the dehumanizing experience that Black kids experience within America’s punitive systems, which too often deny them both the childhoods they need and futures they deserve.
Obviously, the entire conservative wing of SCOTUS deserves to be shamed for contributing to the unconscionable decision in Jones v. Mississippi, but Kavanaugh bears special mention here. In an era of decarceration and definitive scientific evidence that still-developing brains of young people require completely different standards for criminal culpability, a jurist granted the youthful absolution never given to Black, brown, and poor kids has given the system yet more license to exacerbate inequalities. Perhaps even more disgustingly, Kavanaugh authored an opinion that, despite undoing two prior rulings in Miller v. Alabama and Montgomery v. Louisiana, disingenuously pretends to adhere to precedent while completely breaking with it. Justice Sonia Sotomayor, along with Judges Stephen Breyer and Elena Kagan, penned a dissent that called out the ruling for its reversal, citing precedent and concluding, “The Court is fooling no one.”
Unfortunately, this will be another unfair issue young Black and brown kids are made to face. There will absolutely be kids who die in jail, denied the opportunity to prove their rehabilitation. It’s not really about incorrigibility, or the inability of young folks who commit mistakes to change. It’s about a system that forgives some and not others, and does it all it can to ensure things remain that way.
