Book Review: Reforming Criminal Justice

Matthew T. Martens, Reforming Criminal Justice: A Christian Perspective (Wheaton, IL: Crossway, 2023), Hardcover, $34.99.


 

“The first thing we do, let’s kill all the lawyers.” This line from Shakespeare’s Henry VI, Part 2 (Act IV, Scene 2) has been a hackneyed “lawyer joke” since it first appeared. Spoken by Dick the Butcher, a murderous would-be usurper of the English throne, the phrase has retained a certain interpretive ambivalence that has little chance of ever being finally resolved. The two most common reads on what Shakespeare thought he was doing with the line pull in opposite directions. Some interpreters suggest Shakespeare was indeed poking fun at lawyers but doing so in service to a more substantive critique: the legal profession was a tool of oppression of the lower class and was marked by the abuse of the law for personal gain. Others argue that, read in context, Shakespeare is subtly (even backhandedly) celebrating lawyers as a bulwark against lawlessness and as the champions of due process, order, and something resembling justice. Though both positions have had their advocates, only the latter has received the imprimatur of a sitting Justice of the United States Supreme Court.1See Walters v. Radiation Survivors, 473 U.S. 305, 371, n.24 (1985) (Stevens, J., dissenting).

 

General Summary

Whatever the Bard meant in the 16th century, the ideological tension that results from the two modern interpretive poles playing tug of war with the same phrase is understandable. The fact that this line, rather insignificant in terms of the play’s broader narrative, has captured the attention of so many commentators over the years (many of them lawyers, to no one’s surprise) says at least as much about modern perceptions of the legal profession, particularly in the U.S., as it does Shakespeare’s way with words. For many Americans, it is easy to see lawyers as a professional class committed to their own interests and wielding the authority of the state to serve those interests. For others, lawyers are the handmaidens of justice, committed at once to lawful order and the protection of democracy. In a remarkable new book, Reforming Criminal Justice: A Christian Proposal, Matthew Martens wrestles with that vast area of ideological tension in between these positions. A criminal lawyer himself, with experience as a prosecutor in the U.S. Department of Justice and in criminal defense matters as a partner in private practice at a major international law firm in D.C. (with a Supreme Court clerkship on his C.V. to boot!), Martens is well qualified to interpret this messy middle ground. He has seen the U.S. criminal justice system at its best and at its worst. Importantly, as a committed Christian, he has to hand the normative categories necessary to explain why this system is not nearly as broken as some suggest and not nearly as objective and fair as others believe. The traditional Christian understanding of the imago Dei helps with the former, and natural depravity the latter. Indeed, Martens skillfully holds both concepts together and, in tandem, they underpin the book’s analysis.

Yet the book is far more than a simple explanation of the ethical peaks and valleys of American criminal justice. Martens sets forth a broad vision for a justice system predicated not on the subjective moral whims of human beings, but on the objective standards of a holy God. In short, the book is an endeavor to suggest how we might “do criminal justice justly.”2Matthew T. Martens, Reforming Criminal Justice: A Christian Proposal (Wheaton, IL: Crossway, 2023), 8. For Martens, this means an intensive examination of the scriptural prescriptions for “justice.” He concludes that the justice system must be “marked by Christ’s love for accused and victim alike.”3Ibid. From the second table of the law in the Old Testament to Christ’s parables in the New Testament, the Bible time and again commands love of neighbor. Christians therefore are called to love all human beings as image bearers, which means, in this context, advocating for a justice system that treats victims, the accused, and even those convicted of crimes with the proper care and concern. Exactly how that might materialize in practice is traced out elegantly over the course of nineteen chapters. Refreshingly, as an example for every Christian author, Martens bookends his discussion with a clear explanation of the gospel in the first chapter and in the conclusion, not missing the opportunity to encourage believing readers and to evangelize non-Christian ones.

Martens divides the book into two parts, charting in the first eight chapters what a “Christian ethic of criminal justice” might look like.4Ibid., 9. In part two, he turns specifically to the American system, focusing expressly on how criminal offenses are prosecuted. Part one, then, lays out a scriptural framework for criminal justice by which the system he describes in part two ought to be measured. As might be expected, Martens points out several uncomfortable deficiencies, which he illustrates to good effect with (often) heartbreaking anecdotes from real cases. Among many of the problems identified, Martens gives an especially incisive account of racial bias in jury selection, the problems that attend plea bargaining, and the systemic impediments to uncovering the truth in criminal cases, such as the insufficient sanctioning of prosecutors who withhold exculpatory evidence from the defense. Throughout, Martens is careful not to bind consciences by “prescribing particular methods” of addressing these problems “as biblically mandated.”5Ibid., 344. He is clear that there exists “no one-size-fits-all approach for all cultures, histories, localities, and generations—not even for all Christians.”6Ibid. Rather, he tries to “prompt and frame” a “better discussion about how to achieve biblical justice.”7Ibid. In this, he succeeds.­

 

Analysis

It is often a clear sign of a strong book (and a weak reviewer!) when reviews descend into excurses on what the author neglected to say. Let it be a testament then to what Martens has accomplished here that his book provokes many further questions. For instance, what of jury nullification? A practice with a long history in English common law as a remedy against perceived injustices in law or legal process, “nullification” receives no direct treatment in Reforming Criminal Justice. Though not legally sanctioned per se, it has been a feature of the jury system for hundreds of years. Marian Protestant Nicholas Throckmorton benefitted from it in the 1550s when he was caught up in the failed attempt to install Lady Jane Grey on the English throne after Edward VI’s death, and William Penn (yes, that William Penn) almost benefitted from it in the now famous (at least to beleaguered 1Ls) Bushnel’s Case (1670).8For Throckmorton, see generally, The Trial of Nicholas Throckmorton, ed. Annabel Patterson (Toronto: Centre for Reformation and Renaissance Studies, 1998). For Penn, see Bushnel’s Case, 124 E.R. 1006 (1670). Where might an individual juror’s decision, often against a judge’s express jury instructions, to “nullify” a law they deem unjust through the acquittal of a defendant they believe to be guilty, fit in Martens’s ethical framework? Could Christian jurors, at least occasionally, be morally required by the dictates of biblical justice to defy an unjust law? Martens’s otherwise insightful treatment of the complicated moral and ethical concerns surrounding the jury system does not provide an explicit answer. In calling jurors “the Constitution’s backstop” against unjust prosecution, or prosecution for the violation of unjust laws, Martens hints at his position on the matter.9Martens, Reforming Criminal Justice, 222. Nevertheless, it remains but a hint and readers are left to use the guidelines and general principles sketched out in the book to draw their own conclusions. This may be precisely the point.

Another issue in the book that perhaps raises as many questions as it answers is Martens’s treatment of the Apostle Paul’s teachings in Romans 13 on the inherent authority of government. Martens limits the moral force of that authority to those laws that are truly just. He argues that God has only imbued governments with the authority to “adopt and administer with physical force” laws that serve “the cause of justice.”10Ibid., 86. Thus, if a defendant in a criminal case “has not committed a moral wrong, then the authorities are not morally permitted to punish him regardless of what the text of the statute or system of government might empower them to do.”11Ibid. In other words, “God has conferred on human authorities the authority to use physical force only in response to conduct that is evil.”12Ibid., 192. To support this claim, Martens offers several real-world illustrations. He notes that at one point “it was a federal crime to make unauthorized use of Smokey the Bear, to transport water hyacinth plants, and to affix a theft-prevention decal to a car without authorization.”13Ibid., 193. Arguing that “none of these activities are inherently evil,” he concludes that “[n]o one who commits these acts is a Romans 13 wrongdoer” and that, further, it was “immoral for the federal government to criminalize these acts.”14Ibid. What is curious here is that Paul’s injunctions in Romans 13:1-2 offer no such limiting principle. Paul states plainly in verse 2, “whoever resists the authorities resists what God has appointed, and those who resist will incur judgment” (ESV). While Christians have generally been of one mind that the scriptures clearly teach that believers are not to obey human laws that would cause them to violate God’s laws, the examples Martens adduces to support his broader point are not as clear cut as he suggests. If, for instance, the state promulgates a law in service to some broader policy goal, which neither compels immoral conduct, nor proscribes righteous conduct (i.e., the law is morally neutral), and an individual knowingly violates it, how do they not expressly run up against what Paul enjoins in Romans 13? Would not the state have the moral authority, and scriptural justification, to “use physical force” against a person simply because they contravened the law? The defendant in this case would have directly disobeyed God’s “instituted” authority. While arresting, trying, and imprisoning someone for their liberal use of Smokey the Bear may violate the “biblical principle” of “proportionality” (“imposing punishment that is not commensurate with a wrong”) as Marten notes, it is not at all clear that it also violates the “biblical principle” of “accuracy” (“calling conduct evil when it is not”).15Martens, Reforming Criminal Justice, 193. The “evil conduct” in this case would be the direct, intentional disobedience of divinely instituted authority. At that point, regardless of the silliness of the underlying offense, a person would be subject to state censure. The rub here, as it were, is that so long as regulated conduct does not cause a person to violate God’s law by commission or omission, individuals are compelled to obey their “governing authorities.” At very least, the examples Martens chooses to illustrate this point suggest that things get very sticky very quickly when we say that the state only has moral authority to punish acts that are per se immoral (“malum in se” offenses).

Finally, while Martens rightly (given the purpose of the book) disclaims any concern to measure the merits of the American system against her counterparts in other countries, it is curious he chooses not to comment at any length on its canny tendency to self-correct over time. No doubt he is right, as a Christian, to focus more intently on the question, “whether we can do better” in “fashion[ing] a criminal justice system more in line with biblical teaching.”16Ibid., 10. Yet is there not something to be said for God’s good providence in the self-censuring adaptability of the American system? He notes, for example, that the Constitution’s Sixth Amendment, which affords defendants the right to present witnesses in their defense, applied initially to federal criminal cases alone, but was eventually extended to state cases.17See Ibid., 296. Through the mid-19th century every state prevented even defendants from testifying in their own defense. Some states retained this proscription well into the 20th century. In fact, it was only in 1961, with the U.S. Supreme Court’s decision in Ferguson v. Georgia (365 U.S. 570) that such state laws were ruled unconstitutional. It took nearly two centuries, but eventually the system course corrected in the interest of probity and fairness. Furthermore, in one of the more expressly repugnant procedural due process injustices Martens discusses—the exclusion of black jurors from juries based on their race—the Supreme Court eventually righted the ship. Though this problem has by no means been solved, as he explains, the American system has at least ameliorated the issue in large measure. It is possible that in his professional capacity Martens has simply seen far too many disheartening fruits of a still-imperfect justice system to be more sanguine about its progress. To the outsider, however, the results of Martens’s thorough research can be read more positively. From much of the material he presents, American Christians have good reason to be encouraged. To crib John Newton: “[we are] not what [we] might be. [We are] not what [we] ought to be. [We are] not what [we] wish to be, [we are] not what [we] hope to be, but [we] thank God, [we are] not what [we] once [were].”18See The Christian Treasury (Edinburgh: Johnstone, Hunter, & Co., 1869), 314.

Perhaps the most practical part of the book is Martens’s modified use of John Rawls’s “original position” thought experiment. Martens asks, behind the “veil of ignorance”—that is, if we knew nothing about “our individual lots in life”—how might we “design the criminal justice system?”19Martens, Reforming Criminal Justice, 141-42. More succinctly, if we did not know “whether we were more likely to be a crime victim or a criminal defendant” how would that alter our perception of the justice system?20Ibid. Martens is convincing in his contention that this framing helps us “impartially work out the details of what it means to love our neighbors in the criminal justice system as ourselves.”21Ibid., 143. In modifying the Rawlsian veil and applying it to the American criminal justice, Martens allows his readers to consider the evidence he puts forward about the system’s structural weaknesses from multiple angles. This fits with Martens’s broad aims in the book: he hopes to sketch a “map,” or a “guide,” for Christians to consult in thinking and praying through how they can best honor God, in their obedience to scripture, as they seek to see justice done to their “neighbors.”22Ibid., 350. As he ends the book, he reminds his readers that, as we see in Christ’s teachings, “neighbor love compels us to act.”23Ibid., 342. In America, this entails engaging with the democratic process by voting, advocating for change, and serving on juries with love and justice at top of mind. Considering our system of criminal justice from “behind the veil” helps us do just that.

 

Conclusion

What Martens has achieved in this book is truly remarkable. Through accessible and engaging prose, he has mined what most Christians may consider a prosaic topic and has shown its immense relevance for all who wish to honor God through a life lived in biblical love for others. While he complicates our view of the criminal justice system by showing that it may not be as bad as some think, and it certainly is not as just as others contend, Martens does so in Christian love and in service to biblical justice and God’s glory. His book is neither a Jeremiad nor a partisan screed. Rather, it is a constructive and biblically-sound exhortation to “do justice, and to love kindness, and to walk humbly” with God in every facet of life.

 


 

[1] See Walters v. Radiation Survivors, 473 U.S. 305, 371, n.24 (1985) (Stevens, J., dissenting).

[2] Matthew T. Martens, Reforming Criminal Justice: A Christian Proposal (Wheaton, IL: Crossway, 2023), 8.

[3] Ibid.

[4] Ibid., 9.

[5] Ibid., 344.

[6] Ibid.

[7] Ibid.

[8] For Throckmorton, see generally, The Trial of Nicholas Throckmorton, ed. Annabel Patterson (Toronto: Centre for Reformation and Renaissance Studies, 1998). For Penn, see Bushnel’s Case, 124 E.R. 1006 (1670).

[9] Martens, Reforming Criminal Justice, 222.

[10] Ibid., 86.

[11] Ibid.

[12] Ibid., 192.

[13] Ibid., 193.

[14] Ibid.

[15] Martens, Reforming Criminal Justice, 193.

[16] Ibid., 10.

[17] See Ibid., 296.

[18] See The Christian Treasury (Edinburgh: Johnstone, Hunter, & Co., 1869), 314.

[19] Martens, Reforming Criminal Justice, 141-42.

[20] Ibid.

[21] Ibid., 143.

[22] Ibid., 350.

[23] Ibid., 342.

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