Reforming Criminal Justice
Reforming Criminal Justice: A Christian Proposal
By: Matthew T. Martens
“How would we design the justice system if we did not know our lot in life and thus did not know whether we were more likely to be a crime victim or a criminal defendant?”
‘The American justice system is corrupt’ is a politically charged and unhelpful statement. But I’ve heard it like a broken record lately.
This book has done what nothing else has been able to do thus far: tell me specific ways the justice system is unfair, biased, or unjust.
Martens has both decades of law experience— as a federal prosecutor AND a criminal defense attorney— and a seminary degree. This puts him in a unique and extremely helpful position to help Christians (or non-believers for that matter) see the ways the justice system has failed (from firsthand experience in a courtroom) and help us think critically about how our criminal justice system functions in light of biblical justice.
Martens’s main thesis is that a justice system should be aligned with biblical justice in that it functions to love ALL neighbors— both the victims and the accused.
His writing is loving, fair, clear, and does not attempt to take sides on any recent politically charged and public case. I appreciated this because it increased my ability to trust his motive in writing in the book and the research he used to make his points.
He seems to have a very astute mind for the nation’s varying perspectives of the justice system and how conversations tend to go when talking about it— whether that’s in ignorance of what actually happens in the courtroom, popular crime and incarceration statistics, only looking at either the inputs or the outputs of the system, or just touting political talking points.
But none of this will accomplish much if we don’t understand “the design and operation of the features, procedures, actors, and laws that make up the system.”
The first part of the book shows us what the Bible says about justice and what God has ordained government’s role to be. Then it outlines five main pillars of biblical justice: accuracy, due process, impartiality, accountability, and proportionality.
“The core of biblical justice is accuracy, due process is the means to accuracy, impartiality protects accuracy, accountability punishes inaccuracy, and proportionality ensures accuracy about severity.”
He shows how the Bible requires sufficient evidence that shows what truly happened; that the process this happens through is designed to find truth and an opportunity for the accused to be heard; that verdicts are given out fairly across different races, genders, or social classes, not giving special treatment to ‘favored’ groups; that those in charge of rendering verdicts and moving the process along should not receive immunity if they fail to act morally and according to the law; and that the punishment fits and tells the truth about the severity of the crime.
The second part of the book takes those principles and then uses them to analyze various parts of our legal system such as: plea bargains, jury selection, judges, assistance of counsel, witnesses, exculpatory evidence, sentencing, and the death penalty.
Along the way Martens gives us the history of our legal system in general but also of various laws and procedures— why they were enacted and analyzes whether or not they are doing what they were intended to do.
Right up front he addresses the common objection to talking about criminal justice— that it distracts from the gospel.
The term ‘social justice’ can mean a lot of things right now (and I would highly recommend you read Confronting Injustice without Compromising Truth to delve more into what it should mean), and often promotes its principles as higher than or equal to the gospel in many ways.
Martens helpfully defines what he means when he says it: “When I use the term ‘social justice,’ I mean nothing more than justice in the structuring of a society. I am referring to the design of a society in a way that treats all its members justly. A society is a group of people who live together in some ordered way.”
So then, should we make social justice/criminal justice a priority?
Martens answers:
“Christ’s salvific work includes our sanctification… what is sanctification if not Christ’s conforming us to live justly in this world.”
“the answer to injustice mislabeled as ‘social justice’ is not to abandon the pursuit of social justice altogether. True social justice belongs to the church. A real social justice— accomplished imperfectly now through our sanctification and perfectly in the end through our glorification in the new earth— is a crucial pose of the gospel.”
I find Thaddeus Williams’ distinction in CIWCT (above) helpful: “Justice is not the first thing. The gospel is. But that does not make justice optional to the Christian life… Instead of saying social justice is the gospel or in the gospel, it is more helpful to say social justice is from the gospel.”
Bottom line: God is just. And God is loving. Therefore we should care about justice and loving all his image bearers. If we are Christ-followers, neither of those things are optional; they are vital and will require sacrifice to strive for.
I think that might be the most poignant thing I take away from this book. Martens is aware that people tend to relate to one neighbor more than another—either the victim or the accused. This ‘bias’ then influences how we view and vote for things in the legal system.
A helpful analogy he used: If your two kids want to split the last piece of pie, you let one of them cut it in half and the other one gets to choose their piece first. The first kid makes a fair cut of the pie because they don’t know which piece they’ll be getting.
The same should be true of the legal system.
“If we most fear being a crime victim and think it unlikely that we could be criminally accused, we may well favor “victim’s rights,” resent procedural protections for criminal defendants that make convictions more difficult and support harsh sentences for those convicted. By contrast, if we most fear false conviction we may hold the opposite views.”
I was convicted that I subconsciously (or overtly) tend to think the accused is guilty and wave off certain issues because ‘they’re probably guilty anyway.’ That is not loving my neighbor and that is not promoting biblical justice.
As I read through the various procedures Martens details, I was pretty shocked by what is legal and how that affects the accused— and indirectly the victim if innocent people are being convicted and the actual perpetrators are going free. If I were accused, I can’t imagine having to face those disadvantages; I would feel pretty helpless!
The burden of proving guilt is on the prosecutor. The system should be built in a way that actually finds out the truth and convicts accurately, sentences proportionately, and is held accountable for their procedures. If we can do that, then we can trust that the guilty will be caught. We shouldn’t give prosecutors undue advantages that thwart that process.
“Identical treatment is not required of offender and victim, but equal regard for the good of them both (impartiality) is a key element of biblical justice.”
The hard reality is that that might mean some guilty go free if the prosecutor can’t gather enough compelling evidence or witnesses. But this book has softened my heart on this issue and I believe that is better than falsely convicting an innocent person which would be two injustices— wrongly punishing an innocent AND still allowing the guilty person to go free.
“But we are not without hope… Wrongdoers will not escape the arm of the Lord even if their time on this earth passes without giving an account.”
Martens states that the error rate of falsely convicted is about 2% given the information we have, but the rate is most likely higher.
“A conservative estimate is that at least 1 percent of the United States prison population, meaning approximately 20,000 people, is incarcerated as the result of wrongful convictions.”
“If you’re inclined to think that 1 to 2 percent is a low error rate, ask yourselves this: Would you willingly enter a room of one hundred people if you knew that one or two of them would be randomly shot and killed? Would you send your children into that room?”
I am one of the ones that is inclined to think 1-2% is low. But he’s right, that if I were to put myself in those shoes, I wouldn’t be okay with that risk. So what percentage of error is acceptable? He doesn’t say and I’m not sure we can put a number on it.
The idea is that if we can do better, we should.
And I believe there has to be a way. The problems he lists do not seem impossible to adjust.
Some Problems
Here is a list of some of the things that stuck out to me. To get all the details, nuances, and case examples, you’ll have to read the book but here are a few snippets.
Felon Disenfranchisement: Should felons be allowed to vote? This was originally enacted to prevent black slaves from voting. Its origins are definitely unjust. I would need more information on what crimes make someone a ‘felon’ and disabled from voting because the implications of this are far-reaching when the government can decide what constitutes a crime as we already witnessed in history (i.e. vagrancy)
“In almost every state it is lawful for an employer to deny you a job or fire you from your job if you have been merely accused, even if never convicted, of a misdemeanor.” Should this information be accessible to potential employers? This heightens the gravity of any accusation people make as it ruins more than their reputation. However, for example, I believe preschools should know if job applicants have had any misdemeanors or convictions. Does that make it complicated to allow only in certain types of jobs or institutions?
“Roughly 95% of criminal cases are resolved through guilty pleas.” There are many things throughout the book that tie back to plea bargaining. The accused are under severe pressure to plead guilty even if they are innocent because they face interim jail time and the inability to earn for their families plus all the mental stresses of jail; and if they go to trial they face greater sentences, even higher than the normal amount if they had actually committed the crime. PLUS prosecutors can withhold exculpatory evidence from the accused so they don’t know how likely it is that they could convince a jury that they are innocent. In order to actually take all these cases to trials there would definitely not be enough lawyers and judges so I’m not sure exactly how we adjust it in order for it to work, but incentivizing innocent people to plead guilty is just wrong.
“Nearly 500,000 people, though they have been convicted of nothing, are in jail every day in the United States prior to the trial… The vast majority (75%) of those being held face relatively minor charges— traffic violations, property crimes, or drug possession.” This is an issue of bail. The Constitution does not offer counsel for a bail hearing to help people navigate the process. Plus the median bail amount is set $2000 higher than what the median amount of financial assets the majority of defendants have. They face jail time and even though they have a right to a speedy trial, speedy is a loose term. Some sit in jail for months or years awaiting trial— unable to provide for their family or be with their family— and they haven’t even been convicted of anything yet. And now a lot of those ‘guilty’ pleas start to look suspect.
The three strikes rule: If someone gets charged for the same crime three times, this law enables a judge to give them life in prison. While there’s the part of me that thinks- you had two second chances so just stop committing crimes, I also don’t think that forging low amount checks deserves a life sentence as did a case Martens describes.
Federal judges serve lifetime appointments but judges at the state level are elected. “If you were on trial for your life, would you be comfortable having your case, especially a high-profile one, tried before a judge who was standing for election in a few months?” This one has some interesting implications. Wayne Grudem’s book on politics critiques that Supreme Court justices have the most power in the land because they can basically rewrite laws and they are not elected by the people and their term is for life. Martens brings up a good point that lifetime appointments were set to keep election campaigns from influencing cases or rulings because of worry about re-election. I can understand that. Plus as a voter, I really have no idea who any of our state judges are or how they rule on cases; my vote would be pretty ignorant. But at the same time, looking at the Supreme Court, who are appointed, it’s not really a bias-less court. We’re constantly talking about conservative vs liberal rulings and who has the majority and I’m sure they feel pressure to rule according to the ideals of the 'party’ President who appointed them. Even though judges can be removed for misconduct, I’m guessing that doesn’t happen much. Without term limits, certain corrupted or biased judges could have influence for a long time.
“In January 2022, the study of Oregon’s public defense system concluded that 1888 defense attorneys were needed for the state’s caseload, but only 592 were funded.” Lack of funding for defense attorneys means a lot of things: it may take even longer before they can go to trial because they can’t find an attorney who will take the case for such little money; payments are often capped and some lawyers may only be technically funded for 28 hours or less to a case; it incentivizes lawyers to convince defendants to take plea deals so they don’t have time consuming trials that they won’t be paid for; defendants are not getting the best representation because there aren’t enough lawyers or funds to spend adequate time on cases. I’m not sure how we magically come up with the necessary funds or number of lawyers without losing quality of lawyers, but this is definitely a problem.
Often in plea bargaining prosecutors will include the condition that the defendant must waive their right to Brady material. This means it “precludes the defendant from challenging his guilty pleas if he later discovers that the prosecution was in possession of exculpatory evidence.” Exculpatory evidence is anything the prosecutor has that may point to the defendant’s innocence. There is also impeachment evidence which is information that undermines the credibility of a prosecutor’s witness. Some states don’t require the disclosure of this evidence prior to trial which can definitely lead to injustices because people are taking plea deals they shouldn’t be taking because they aren’t aware of all the evidence out there. Are we just trying to help prosecutors win, or are we looking to prosecute actual criminals? There is also no consequences for lawyers with Brady violations, even when it cost innocent people many years in prison for crimes they didn’t commit.
Prosecutors can compel witnesses to testify in court. The defense cannot. Prosecutors can not only pay someone to testify but they can offer freedom or reduced sentences which is why there are so many jailhouse snitches. Even though studies show “At least 8% of all exonerations between 1989 and 2015 (and 15% of all exonerations in murder cases) were of people convicted in part based on the testimony of jailhouse snitches.”
Statutory minimums for certain crimes do not allow a judge discretion when determining sentences. Additionally, because of ‘acquitted conduct’ even if an accused is acquitted for a crime- meaning shown not guilty- the judge can still use facts from that accusation to increase the defendant’s sentence on a different crime they were found guilty of. The judge does not have to be convinced beyond a reasonable doubt but can charge more years on a sentence for a crime the defendant was acquitted for.
If minors need to be confined after conviction they will typically serve it at a juvenile detention center, but sometimes they’re put in adult prisons. “…roughly 650 children are held in adult jails and prisons” and juveniles are “5 times more likely to be sexually assaulted in adult rather than juvenile facilities— often within the first 38 ours of incarceration.”
The death penalty gets its own little blurb here as it’s a contested topic and one Martens admitted he changed his mind on. I appreciate the way Martens handled his answer to the question of whether capital punishment is just. He acknowledges that the Bible authorizes it and sometimes commands it.
“The biblical record is overwhelming in its affirmation of the death penalty as a just punishment for certain crimes.”
But he says,
“In a justice system that injects race into jury selections in trials before elected judges who run on ‘tough on crime’ campaign platforms with defendants represented by overworked and underfunded defense teams while the prosecution conceals exculpatory evidence without consequence, I am unwilling to wager another man’s life.”
And though I believe the death penalty is a valid deterrent and a just punishment in some cases, I can’t really argue with Martens here.
He gives a lot of statistics on the disproportionate application of the death penalty, particularly on black people.
“Most murders are intra-racial… In the most recent year for which data is available, 91% of Black murder victims were killed by Blacks, while 81% of White murder victims were killed by Whites… Thus were race not playing a role we would expect to see most of the Black defendants sentenced to death to be in cases where they murdered a fellow Black personal. In fact, the statistics show precisely the opposite.”
I don’t really understand how our justice system would still be operating with racial prejudice when it comes to applying the death penalty, but apparently the statistics show that. And if that is the case, then I think I would have to agree that until some changes are made to due process to actually find out the truth about who is guilty and who is innocent and then applying sentencing with a blind eye to race or social class, then I’m not sure I can defend the death penalty either.
What Am I Supposed to Do?
One of my critiques of a lot of these kinds of books is the that they spend the entire book criticizing ‘the system’ and showing how corrupt or unjust it is and then offer nothing constructive. We just sit there with all the pieces they shattered, unsure what to do with them.
That’s not helpful.
Martens doesn’t give answers in the form of policy changes we all need to request of our state governments, though part of me wishes he had.
“There is no one-size-fits-all approach for all cultures, histories, localities, and generations— not even for all Christians… we have 3144 criminal justice systems— one for each county in the US, each with its distinct features, priorities, strengths, and weaknesses.”
But he doesn’t leave us empty-handed.
He gives us four exhortations:
Think differently: view both the victim and the accused as your neighbor and an image-bearer of God; be careful of the labels you use and the jokes you make; want what is best for all people
Speak differently: have better, more informed discussions about the actual issues instead of the political talking points; teach your children to love kindness, justice, and truth by the way you talk about others
Work differently: for those who work in relation to the legal system, advocate for just laws or quit if your job forces you to act immorally
Vote differently: criminal justice should be have high moral priority when considering who to vote for; be involved in the election of your county’s district attorney (pg 348 has a list of questions you may ask at a townhall; as a juror your vote is powerful so judge the case morally and with love for what is best for the defendant
“Each and every one of us can, starting even today, think differently about justice, speak differently in our sphere of influence, work differently if need be, and vote differently when the opportunity presents itself.”
It may not be the specific answers we wish we had, but Martens does give us more than most without piling on guilt.
Recommendation
This is a must-read book.
Especially if you have any sort of influence in the legal system from policing, to legislature, to trial participation to prison management. Go ahead and buy one for your district attorney, your judges, your senators, your representatives, your police chief.
Martens isn’t writing for a political agenda. He is writing for truth and justice and deals with facts and figures, laws and cases. It will shock you, it will anger you, and it will enlighten you.
As someone who knows both the law as it is in real life (not just in Suits or Law and Order) and the Bible, Martens is an excellent source to glean knowledge from as we look at how we can better love our neighbor through our criminal justice system.
Hopefully we are never at trial, but if we were, we would want a fair one and one that didn’t back us in a corner to plead guilty to something we didn’t do.
This is definitely a book I’ll reference and recommend when it comes to discussions of criminal justice.
Further Reading:
He attends church with Mark Dever and Jonathan Leeman and quoted one of Leeman’s books that I also found to be a really helpful book:
How the Nations Rage by Jonathan Leeman
Their church is in the heart of D.C. and their congregation is a diverse piece of the political pie. This book helps us view politics rightly in the church and how to view and engage with brothers and sisters in Christ who disagree with our political values. It was fair, balanced, practical, and helpful.
Another relevant book is Kevin DeYoung’s book:
What is the Mission of the Church by Kevin DeYoung
This engages more with the tension of pursuing social justice without compromising the priority of the gospel. What is the church’s role? It is important to note that there is a difference between the individual and the church specifically. This book made sense to me though I’m sure there are people who will disagree with it.
I’m sure there are many books that tell the stories of innocent people on death row but here are a couple to start with:
Just Mercy by Bryan Stevenson
I Shall Not Die by Billy Neal Moore
**I received a copy of this book via Crossway in exchange for an honest review**
This book just released November 23, 2023. You can order a copy of this book using my affiliate link below.
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