Justice Brett Kavanaugh and Mississippi inmate Brett Jones share more than their first name. They both have incidents in their past that have followed them since. Justice Kavanaugh got a second chance. Jones, in part because of Kavanaugh, apparently will not.

Justice Kavanaugh wrote the majority opinion in Jones v. Mississippi, released earlier this week. In 2004, Jones, fifteen years old, killed his grandfather after an argument about Jones’s girlfriend. He was convicted of murder, and under Mississippi law was sentenced to life without possibility of parole, even though the evidence showed he had suffered through an abusive childhood and was at the time of the murder without his anti-psychotic drugs. After his conviction a series of Supreme Court opinions had seemingly eliminated life without parole for minors, by limiting life without parole to minors found to be “permanently incorrigible,” Jones sentence was reconsidered, but once again he was denied even the possibility of parole. Jones had served his time in prison without incident. His argument was that he was at least entitled to be considered for parole, because there had been no finding at the time of his conviction that he was “permanently incorrigible,” and the State failed to even offer any evidence of such. No, Justice Kavanaugh said, even in the absence of such a finding condemning the teenager to a life behind bars was constitutional.

Many commentators have found that opinion rather harsh, coming from the justice who raged at the Senate Judiciary Committee for daring to investigate allegations of teenage rape against him. What, he asked the Committee, do my teenage years have to do with my current fitness? Brett Jones, as he languishes in a Mississippi prison, would like to a hearing to ask that question. That, however, is an issue for the Twitterverse. The more troubling aspect of the case, I believe, is how the Court seems to have gone out of its way to affirm a disturbing result. Jones’s resentencing had already been affirmed by the Mississippi Court of Appeals. The Supreme Court didn’t have to take the case. Why did they? All Justice Kavanaugh tells us is that the Court took the case in order to clear up some disagreements among lower courts about how to interpret the prior caselaw. He fails to tell us what those disagreements are.

In fact, what the case really suggests is a concern for logical tidiness over actual justice. At the end of the opinion, Justice Kavanaugh writes “This case does not properly present—and thus we do not consider—any as-applied Eighth Amendment claim of disproportionality regarding Jones’s sentence.” That is lawyer talk for “we’re not worried about whether the law leads to an outrageously unjust result in this case.” We don’t care whether Brett Jones is actually suffering cruel and unusual punishment, given all the circumstances.

The 16^th Century Protestant divine William Perkins, who wrote at length about equity as both a legal and a moral value, gave youth as an example of things that should mitigate the harshness of the law. In Perkins’ England, convicted thieves got hanged. What about a minor, Perkins asked? No, “[t]he equity or moderation, I say, in this case is not to inflict death, for that were extremity, but to determine a punishment less than death: yet such a one as shall be sufficient to reform the party from his sin, to punish the fault, to terrify others and to satisfy the law.”

The question before the Court in Brett Jones’s case was not whether he should be released. All he was asking is that he be allowed to make his case to the parole board. What purpose is served by denying him that right? Perkins lists four purposes for punishment: reformation of the wrongdoer, retribution, protection of society and satisfaction of moral standards. The first and third purpose – whether Jones has been reformed and whether society still needs protection from him – would be the subjects of the parole hearing. The fourth, satisfaction of moral standards, seems to weigh in Jones’s favor. Even Justice Kavanaugh acknowledges that mandatory life sentences for minors are increasingly frowned upon. So that leaves only retribution.

Retribution is a complex topic. The root sense of the word goes back to tribute, and then to tribe. It is a payment to society to restore the imbalance created by an unjust act. Retribution in this sense lies on the spectrum between restitution, which is repayment for damage done to an individual, and vengeance, which is the eye for an eye concept, payback in the current, street sense. More importantly, retribution is a form of judgment, a declaration that certain behavior violates social norms. Jones’ grandmother, the widow of the murdered victim, lobbies for his right to a parole hearing, calling him a changed person. That’s certainly relevant, but not conclusive, because the right to retribution is not merely, or even primarily, personal to the victim. Society holds it. Has society’s interest in retribution been satisfied here? Would our interest in declaring Brett Jones’s crime out of bounds be impaired by giving him a parole hearing? I think the better question is this one: Are we so sure of our judgments that the declaration, many years ago, that the teenager was so dangerous, and what he did so horrible, that he should never even be considered as a candidate for redemption? That, is effect, is what the Court says about Brett Jones. It doesn’t say so explicitly; it ducks the question

Oliver O’Donovan points out, Christians believe that human judgments, which can never be perfect, approach perfection only when they mirror the judgment that God might render. And God, we believe, never declares anyone beyond redemption. Nor does the possibility of pardon, to which Justice Kavanaugh alludes at the end of his opinion, change that. The practice of executive pardon, as we saw with the closing days of the last presidency, is so corrupt, so random, that it insults, not promotes, the principles at stake in Brett Jones’s case. Justice Kavanaugh seems only to want to shift moral responsibility for Brett Jones’ predicament away from the Court. An understandable instinct, certainly, but there was a better course. Perkins writes “no lawmakers, being men, can foresee or set down all cases that may fall out. Therefore, when the case altereth, so must the discretion of the lawmaker show itself and do that which the law cannot do.” The Court could have sent the case back and ordered the trial court to make a finding on Jones’s “permanent incorrigibility.” I don’t know whether Brett Jones is worthy of parole or not, but Brett Kavanaugh doesn’t either. The Court could have allowed him his chance to prove he is. Instead, it swallowed its whistle. Shame on them.