No Child is Irredeemable

The Hypocrisy of Our Conservative Supreme Court

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Last week, the conservative justices of the Supreme Court made it much easier for judges to sentence children to life in prison without the possibility of parole. Writing for the majority, Justice Brett Kavanaugh gave states incredible leeway in imposing the harshest possible sentence, short of the death penalty, on America’s young. At a moment when conservatives and some liberals are caught up in arguments about “cancel culture” and how many trespasses we are obligated to forgive, greater leniency for juvenile offenders should in theory be a point of agreement. After all, many liberals want to see a scaling-back of harsh sentencing laws, while many conservatives are voicing concerns about the harsh social penalties extracted of anyone who makes a mistake. Putting a kid behind bars for the rest of his or her life is about as canceled as someone can get, provided they’re still living. So why is this case only registering on the left (and even there, barely)? And what can it teach us about the social necessity for forgiveness, and how we are impoverished by our near-universal lack of mechanisms for rehabilitation and acceptance back into society?

It’s particularly galling that the majority opinion was written by Kavanaugh, a man who faced his own allegations of teenage criminality during his confirmation hearings. He denied involvement in an attempted rape, but was obviously incensed that he even had to answer the charge. Some of his supporters emphasized that the alleged attack, if it happened at all, happened decades ago; memories fade, maybe it’s a case of mistaken identity, and after all, they were all just kids.

At the same time, Kavanaugh and several of the other justices who signed onto the majority opinion come from faith traditions that purport to value forgiveness, as well as the dignity and life of every human being. Amy Coney Barrett was a part of a “pro-life” faculty group at Notre Dame, and spoke often about how her Catholic faith shapes her values and morals. She shares that faith with Justices Kavanaugh, Samuel Alito, Sonia Sotomayor, John Roberts, Neil Gorsuch, and Clarence Thomas; among all of the Catholics on the court — among all of the Christians on the court — only Sotomayor dissented in this case. A fundamental ritual of the faith that now dominates the highest court in America is a process of atonement, and a fundamental belief that no human is irredeemable — or, in the language of the law, “permanently incorrigible.”

And yet that’s exactly what we were branding children in order to lock them up for the rest of their lives: “permanently incorrigible.”

Or at least, we were before. Now it’s even worse: In this case, the Court held that a judge doesn’t even need to determine that a child is “permanently incorrigible,” or incapable of being rehabilitated, in order to sentence them to life in a cage. A court only has to “follow a certain process,” taking age and circumstance into account, before issuing a sentence of life in prison without parole for a child. The earlier standard — that life without parole be reserved for the rare children who the court determined were so violent and corrupted that they posed a permanent danger to society — already said something ugly about who we are and how we view children. Now, even that pathetic standard has been gutted.

The case the Court just decided was that of Brett Jones, who at age 15 killed his grandfather. Jones and his grandfather got into a fight about Jones’s girlfriend sleeping over; they argued, and began shoving and punching each other. Jones grabbed a kitchen knife and stabbed his grandfather eight times, then tried to cover it up.

The facts are not pretty. But the issue isn’t whether Jones is innocent or guilty, or whether he is responsible for doing a bad thing. He is guilty; he is responsible for doing one of the very worst things human beings can do. The question isn’t one of the wrongness of his actions, but the scale of appropriate punishment. In the U.S., that question is often answered in the extreme — we don’t just put more people in jail than our economic peer nations, we put them there in harsher conditions for longer periods of time. That’s generally bad, but it’s specifically, appallingly bad when we do it to children.

At this point, we know quite a bit about the adolescent brain, “incorrigibility,” and legal responsibility. Teenage brains are more driven than adult brains by reward mechanisms that respond to risk-taking; they are less able than fully-developed adult brains to delay action and reaction; they seek out novelty and sensation and respond more to peer pressure; and they have not fully developed their impulse-control capabilities. That doesn’t mean they aren’t responsible for what they do; it does mean that the adolescent brain does not function at the same level as the adult brain, and it is therefore particularly cruel, particularly unfair, and particularly barbaric to treat children, adolescents, and teenagers like adults in the eyes of the law. The teenage brain is still changing; who a person is at 15 is not who they are at 35 or 65 or 95. Who a person is at 20 isn’t who they are at 35 or 65 or 95 — there’s a reason we see an incredibly strong correlation with crime and age, with men under 30 committing the bulk of violent crimes. As people age out of their teens and 20s, they generally became better at controlling their impulses, reactions, and emotions; that isn’t true of every single person, which is why sociopathic serial killers capture our imagination, but is is true of populations generally. Most people who commit violent crimes in their teens will not be committing violent crimes in their 40s, 50s, 60s, and beyond. This isn’t new information, and the more we learn about human brain development, the more obvious it is that long-term incarceration is among the most egregious and counterproductive things we can do to anyone, let alone vulnerable children.

Yet here we are, still doing it, and putting people behind bars for decades well after they have paid a high price for their crimes, and well after they have ceased to be a danger to society. This isn’t by accident; it’s also not a matter of the powerful simply oppressing from the top down, although that’s a big part of it. It’s also a mirror on our fears and worst impulses, and reflects a deep social attachment to the idea that people are either bad and irredeemable or good and therefore don’t have to worry about things like going to jail or facing other serious consequences for their actions. Even progressive folks who push for criminal justice reform adopt this reactive and reductive mindset in other contexts — for example, arguing that what a person tweeted or said as a teenager should shape their professional life years or decades later. Of course that’s not the same thing as putting someone in jail; not even close. But I’m not sure we can ever fully undo the worst aspects of the American criminal justice system until we undo the hyper-simplistic good guy/bad guy mentality that undergirds it, and the general thirst for punitive responses to wrongdoing — and often, a demand for the most punitive response possible to signal seriousness.

What we really need are mechanisms for recognition of wrongdoing, repentance, and, eventually, reentry. Right now, we have various revolving doors of punishment, abandonment, and rejection: jails and prisons; ERs and hospitals in place of robust mental health care; welfare systems built to be as stingy, Byzantine, and humiliating as possible. And what we see is that the same people who talk a big game about the importance of freedom and human dignity and faith and the right to make mistakes or even do bad things and without getting rejected and canceled — those people are the same ones who are willing to lock kids up and throw away the key.

I’ve written about this before, but one job of progressive folks is to start building the society we want to live in within our own spaces and communities, even when it’s hard (especially when it’s hard). That means emphasizing proportionality in response to wrongdoing; it means creating mechanisms by which someone who has done wrong may sincerely atone and may find their way back into the fold; it means rejecting our very human impulses toward punitive responses, public shaming, and ostracism.

Conservatives like Kavanaugh, Barrett, and others who claim to hold certain conservative and/or religious values — a belief that every human has God-given worth and dignity, for example, or perhaps a conviction that the state should offer its citizens maximal freedom and minimal repression —have a heavier lift, and frankly evince profound hypocrisy. What I see are liberals, leftists, Democrats, and progressives discussing, debating, and often arguing over these questions sincerely and deeply, if at times harshly and angrily. What I see from conservatives and Republicans is a retreat to black-and-white thinking, while they ignore huge betrayals of their stated beliefs in favor of hand-waving about whatever culture war issue can’t be solved legislatively or judicially but can froth up a lot of rage.

No child should spend the rest of their days in a cell because a conservative judge decides that they are irredeemable before their lives have really begun. No society should lock its children up without even pretending to try to care for them and better their lives. A society that cages and abandons its young is a sick one — but like the kids we put behind bars, never incapable of change, and never irredeemable.

xx Jill

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