Religion & Liberty Online

Reforming the Sword of Justice

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A new book offers biblically based arguments for reforming the criminal justice system without succumbing to the Scylla of indifference or the Charybdis of “defund the police” utopianism.

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In Reforming Criminal Justice: A Christian Proposal, Matt Martens has written an indispensable guide for Christians engaging with questions of criminal justice reform. While Dagan and Teles’ Prison Break: Why Conservatives Turned Against Mass Incarceration had outlined the hopeful story of bipartisan, and even conservative, criminal justice reform in 2016, the events surrounding George Floyd’s death—including the recent uptick in the murder rate—has plunged the reform conversation back into the pit of political polarization. So nothing could be more timely than this book, and Martens is certainly the man to have written it: not only has he served both as criminal prosecutor and criminal defense attorney on a huge range of cases over the course of a 25-year career, he also has a masters in theology from Dallas Theological Seminary. Perhaps most important is Martens’ tone, which is one of careful deliberation steeped deeply in the way of Jesus. One gets the sense that Martens is reading not just politics but the entire American legal system through the lens of scripture, and not (as is sadly too often the case) the other way around.

It feels a bit out of left field, but Martens opens the book with 20 pages of straight theology before even beginning to discuss the criminal justice system. By the time I was halfway through chapter 1, however, I saw what he was doing and why: he was weaving a straight path to avoid careening into one or the other of two theological ditches. On the one hand, the purely forensic notion of the gospel that can be found all too often on the theological right will tend to brush off worldly concerns about justice. The now clichéd “just preach the gospel” means too often that we need not concern ourselves with trying to reform the systems of this world. On the other hand, proponents of the social gospel fall into the ditch on the other side with their vision of social activism as ushering in a man-made kingdom of heaven.

Speaking out of the Reformed tradition, Martens describes himself as a Christian realist. Reforming social institutions won’t get rid of the sinfulness and brokenness in this world, but it will reflect obedience to a God of justice who imbues the state with the moral authority to punish evildoers and reward the good (Romans 13). The good news, after all, isn’t only that I can be saved from the guilt of my sin and an eternity in hell but also that I can be saved from the power of sin and unto good works. Since the essence of all good works is love of God and neighbor, and the essential (and God-ordained) role of the state is the legitimate use of physical violence, any serious Christian ought to care deeply about wielding such a weighty responsibility justly. After all, the images of God are at stake.

So when it comes to the term “social justice,” Martens ends up taking a similar tack as my co-author and I did in Black Liberation Through the Marketplace. Rather than ceding the term entirely to the left, he returns to its original use by both Luigi Taparelli in 19th-century Catholic Social Thought and theologically conservative Protestant scholars in the 20th century like John Stott and Carl Henry. Social justice simply referred to a just social order. Martens doesn’t want to over-realize the eschaton—he knows that the full justice of God’s restoration is not something that will come about prior to Christ’s return—but he doesn’t want to under-realize it either. Christians ought to be working toward a more just society as they serve in their various vocations. I might add, as we’ve seen from works like Tom Holland’s Dominion, that this is nothing other than what Christians have always been doing. They rescued abandoned babies, created the hospital system, required that women consent to their marriages, educated the poor, and slowly established the institutions that protect equality before the law. So far, then, Martens has managed to open the book without alienating either political “side,” except perhaps the most extreme—either those on the right who resent the use of the term “social justice” no matter how it’s contextualized or those on the left who resent his suggestion that their own concept of social justice has become enslaved to ideology.

For most readers, Martens’ next move will probably seem quite strange. Through an extensive appeal to scripture, he argues that while love is much more than justice, it is certainly at least justice. Therefore, all true justice is motivated by love—love for victims, for the good of the community, for the accused, and—dare we say it?—even love for the convicted. While the concept is certainly counterintuitive, I appreciated Martens’ arguments because of my familiarity with Aquinas’ natural law theory. Aquinas defines “love” as a desire for the good of another and a willingness to act to that end. For Aquinas, proper authority includes care for the common good of the community. But by “common good,” Aquinas does not refer to the utilitarian notion of aggregate happiness. Rather, Aquinas means that those in authority must care about the good of each member of the community—that is, he (or they) must love each one and therefore must will their good and act to that end.

While it’s fairly obvious that keeping the community safe is a loving act toward the community, or getting justice for a victim’s family is a loving act toward that family, it’s not as obvious that rendering justice to the criminal is an act of love toward the criminal. But indeed it is. At the very least, it stops the criminal from doing more evil, damnable deeds. It gives the criminal an opportunity to repent. I would add that it acknowledges the criminal’s dignity by acknowledging his or her agency as a moral being—a being made in God’s image—who bears responsibility for his or her actions.

The connection to Aquinas aligns well, I think, with Martens’ approach. As a matter of fact, he uses the example of just war theory (for which Aquinas is one of the most prominent explicators) throughout the work to explain the parallel logic behind criminal justice. After all, as he says, every act of criminal aggression is a kind of tiny war. Just as there are rules about when it is appropriate to go to war and how one must conduct oneself in war, there are restrictions on what can count as an act worthy of government retaliation, and there are appropriate and inappropriate ways for state actors to conduct themselves as they arrest, imprison, and try the accused.

Drawing heavily on scripture as well as a broad range of Christian thinkers from Augustine to Calvin, Martens lays out five major principles of biblical justice as it relates to crime: 1) Accuracy, 2) Due Process, 3) Accountability, 4) Impartiality, and 5) Proportionality. From the Torah, we glean that God is interested in genuine guilt and innocence, not just the appeasement of our desire for revenge. This first principle leads necessarily to the second, since this fallen world will be so prone to producing both false accusations and false alibis. It’s not simply that the judgment must turn out ultimately to have been correct but that the system must have exhausted all reasonable means to ensure that it was correct. The fact that the state wields the sword against God’s image-bearers reminds us of the seriousness of these moral duties. This also means that when officers of the state fail to use all reasonable means to come to an accurate conclusion in a criminal case, they then become the Romans 13 evildoers and must be held accountable themselves.

Martens pulls no punches here: he clearly thinks that Christians involved in the criminal justice system must refuse to participate in elements of the system that are unjust. While Martens deftly avoids committing himself to concrete policy positions that he would rather leave open for debate, he ruthlessly questions practices of absolute immunity for prosecutors and qualified immunity for police officers since these violate the accountability requirement. The section on impartiality highlights America’s terrible history of racism in the criminal justice system, particularly as regards participation on juries. While I was familiar with this history, I hadn’t entirely grasped its implications. I knew that white supremacists avoided putting black men on juries because they never wanted a white person to be convicted of violence against a black person. But they also wanted to convict as many black people as possible, both for convict-leasing purposes and to ensure that fewer and fewer black men would be eligible to vote or participate in the jury system. In case this seems like exaggeration, Martens peppers his discussion of each principle with devastating examples. To the extent that our system remains racially partial (even when other factors such as class are adjusted for, there are shocking disparities), it offends the standards of biblical justice.

Finally, Martens’ discussion of proportionality brings up the important limit that requiring the punishment to fit the crime places on our dreams of deterrence and reform. These are both worthy goals in the criminal justice system, but must always be subordinated to proportionality, which puts an upper limit on the nature and extent of punishment.

The second half of the book is dedicated to demonstrating that, while America’s system of justice has an excellent infrastructure for the proper balance of concern for victim and accused, it’s gone way off the rails in several major areas. As someone who has written on criminal justice reform, I didn’t expect to learn much in this section. But the emphasis on our duty to God according to the moral authority he has ordained to the state provided an entirely new lens through which to view our problems. Writers on criminal justice may lament our high numbers of incarceration or our high crime rates, or unreflectively resonate with the accused or with the victim. But Martens pulls the reader back to the discipline of the five principles of biblical justice and their context in love for each person involved. For example, the prevalence of plea bargaining is unjust, not simply because it bypasses the trial process, but also because it generates a high number of false convictions. This means that not only is the accused harmed by being punished unjustly, but victims are harmed because they didn’t get justice, and the community is harmed because the actual criminal is still out there. The fact that plea bargaining feels necessary to work through the sheer number of cases coming through the system may even be a signal to us that we have created too many laws.

While I was already deeply familiar with the under-supply and low pay of criminal defense attorneys for indigent accused, I was quite ignorant of just how prevalent it is for prosecutors to fail in sharing exculpatory evidence (“Brady material,” named after the Supreme Court case) with the defense attorney. This is a clear violation of the law, and because we are now tracking thousands of exonerations, we can see clearly just how often this occurs. The most shocking part of the story, though, is that these prosecutors experience no accountability for this failure, even when it costs the mistakenly convicted years and years of unjust imprisonment. Such egregious systemic injustice should shock the conscience.

While Martens leaves the sticky policy questions up to us to work out, this book serves as a fundamental reorientation of our minds to God’s standards for criminal justice, his love for each person involved, and the weight of our moral duty to only wield the sword as justly as it is reasonably possible to do. By staying so deeply rooted in scripture, Martens is able both to appreciate and to critique the American system in fresh ways that could re-motivate theologically conservative Christians to promote criminal justice reform. Rather than avoiding this subject because of the “Defund and Abolish” utopianism of the left, faithful and thoughtful Christians should bring their care and their creativity to the project of eliminating evil and injustice in our system. We do this by loving people: we keep the community safe within the bounds of proportional punishment, we get justice for victims and their families, and we acknowledge the dignity of the accused and convicted.

Rachel Ferguson

Rachel Ferguson, Ph.D., is a professor of business ethics, assistant dean of the College of Business, and director of the Free Enterprise Center at Concordia University Chicago. She is also a board member for LOVEtheLOU, a neighborhood stabilization ministry in North St. Louis; the Freedom Center of Missouri; and ReThink315. Her new book, co-written with historian Marcus Witcher, is Black Liberation Through the Marketplace: Hope, Heartbreak, and the Promise of America.