Is the criminal justice system in the US broken? If so, what would it take to fix it? Are there parts of the justice system that are actually unjust? Join Scott and Sean as they discuss these questions and more with attorney Matthew Martens around his new book Reforming Criminal Justice: A Christian Proposal.
Matthew Martens is a long time attorney, has seen both sides of the criminal justice system. He has worked both as a federal prosecutor (9 years) and as a criminal defense attorney (12 years). He also has a MA in Biblical Studies from Dallas Theological Seminary.
Scott: What does the Bible have to say about our criminal justice system? What are some of the parts of the system that are unjust and need to be changed? How do you ensure that justice is being done when the system is full of fallible human beings? We'll answer these questions and a whole lot more with our guest today, Matt Martens, who is a former prosecutor, now criminal defense attorney in part of his practice, from his new book, Reforming Criminal Justice, a Christian Proposal. It's a fascinating new book, look so forward to getting into it. I'm your host Scott Rae.
Sean: And I'm your co-host Sean McDowell.
Scott: This is Think Biblically, a podcast from Talbot School of Theology here at Biola University. Matt, welcome. Great to have you with us. Tell us a little bit about your own story and what specifically, what qualifies you to talk about the changes to the criminal justice system that you're proposing, particularly from a Christian worldview.
Matt: So thanks for having me here today. I'm really honored to be here. So I guess, you know, I don't know if I'm, you know, what makes me qualified. It's a complex topic. There's lots of different qualifications people could have. I'm a lawyer. I've been practicing criminal law both as a federal prosecutor and a defense attorney for more than 20 years. I was a political appointee in the George W. Bush administration in the early 2000s, serving as chief of staff for the criminal division in the U.S. Justice Justice Department under Attorney General John Ashcroft. I was a line federal prosecutor handling almost every type of criminal case imaginable from murder to child pornography to bank robbery to bank fraud to tax fraud to public corruption to drug trafficking to gun charges. For the last 10 years I've been a defense attorney, again, handling a variety of offenses though now mostly white collar crimes. And in addition, I have a graduate degree from Dallas Theological Seminary and I've attempted to analyze the issue of criminal justice from a Christian theological perspective. So to the extent I'm qualified, that's the background I bring to this.
Sean: That makes a lot of sense. You've got professional, you've got personal, you've got the academic training, you've seen this. Talk a little about why it's important to have theological resources when approaching this issue, because I imagine some people would say, "We ought to leave faith out of this topic."
Matt: Well, the short answer for why it's important to me to have theological resources when speaking to the issue of criminal justice reform is because I'm a Christian. So when Jesus calls us to come follow him, I don't understand that to be a call to follow him in some limited areas of life, or maybe stated conversely, to call to follow Jesus is a call to follow him with all and in all of our lives.
Matt: There's no area of life in which I'm entitled to not be a Christian. I've heard people argue that government service is somehow exempted from my obligation to follow Jesus, that there my obligation is to follow the law. And sometimes people invoke in support of that argument the passage in Matthew 22 about giving to Caesar what is Caesar's and to God what is God's. But Romans 13 makes clear that government authority is God's. And to the extent we have it, we have it on loan, we have it delegated. So whatever it means to give to Caesar what is Caesar's, it does not mean that there's some exemption from following Jesus in the exercise of government authority. Romans 13 literally calls government officials God's ministers, and God's deacons is literally the word used there. So even government service is to be done in submission to Christ. To use the Apostle Paul's words, we are to take every thought captive to make it obedient to Christ. And all of my thought about all the topics that I face as a Christian living in a fallen world need to conform to what Christ commands. And that all of my thoughts that must be obedient to Christ commands includes all of my thoughts about the issue of criminal justice. So, what I've tried to articulate in my book is a way to help folks understand what those commands of Jesus are, drawing on both my understanding of scripture and my understanding of the history of Christian theological reflection on the issue of justice and try to bring my thoughts about criminal justice into line with Christ's thoughts on that topic.
Sean: So apart from certain studies that we've seen, are there any things you personally saw about criminal injustice that made you say, "I've got to write this and I've got to stand up and I've got to commit this season of my life to fighting this issue in a different way than through the courts, such as writing a book and defending this publicly.
Matt: Yeah, it's funny. I never set out and I never had any ambition in life to write a book, but like all Americans, I lived through the events and the unrest and the discussion that began probably in earnest with the events in Ferguson, Missouri in 2014, and then continuing through the murder of George Floyd in 2020. And that prompted for me, like probably for a lot of your listeners, discussions with fellow citizens, fellow believers, and two pastors of mine, one at that time, a current pastor, Isaac Adams, who's now a pastor in Birmingham, Alabama, and Pastor Garrett Kell, who had been one of my pastors and was then at another church, both really urged me to write something on this because they thought, given my background as a prosecutor and a defense lawyer and my theological training that perhaps I could bring something useful to the discussion. And so it was really that national conversation and the prompting of friends that caused me to set out on this project to write a book.
Scott: Now, Matt, you maintain when you start out talking about the criminal justice system and describing it, you describe it as, I quote, “State sponsored and in parentheses, morally justified physical violence.” Tell us a little bit more about what you mean by that term.
Matt: What I mean is that we order society, any society orders itself by different means. And a combination of means. So you can order society through laws, through customs, through mores, through shame, through social pressure, through teaching. And one of the ways in which we order society is through the criminal law. As Supreme Court Justice Clarence Thomas said in a case decided just last year, “The government enforces societal norms through the criminal law.” But what distinguishes the criminal law from other ways of enforcing social norms is that the criminal law uses physical coercion or violence. In other words, the criminal law doesn't just issue commands, "Thou shalt not kill," for example, but the criminal law backs up those commands with a promise that if you break them, physical force will be brought to bear on you. Now, we don't often think of it in those terms. Typically, the threat of physical force that will be brought to bear is the threat that you'll be imprisoned. But make no mistake, the threat of prison is the threat of physical force. Every single person who ends up in a jail cell ends up in that cell either because force is threatened or if necessary, actually used. There's literally men and women with rifles who will shoot you if you attempt to escape from prison. There's a threat of physical force and if you refuse to submit to that threat and attempt to escape, that threat will be realized, it will be actualized, you'll be shot. And so that isn't necessarily to say that the threat is violence is unjustified, rather what I'm trying to do when I make that statement is bring clarity to the fact that criminal justice is physical violence. And this sharpens the moral question we have to answer, which is when and under what circumstances, under what conditions are we morally entitled to use physical force or violence against another human being?
Sean: All right, well, you asked the right question, so let's take that a little bit further. You do maintain in the book that physical violence is justified when it's motivated by love of neighbor applicable both to the victim and the wrongdoer. So maybe flesh that out and also how imprisonment itself could constitute such love of neighbor.
Matt: Yeah, there's a lot to unpack there. So let me try to give a couple road markers to think about this topic. So first of all, justice and love are not in conflict.
Matt: Theologians refer to the divine simplicity of God, right? God is not made up of justice, He's not made up of love. It's not the case that some of God's acts are just and other of His acts are loving, so that when you put all those acts together, you have a just and loving God. Rather God is just, God is love. All that God is and all that God does is just. All that God is and all that God does is loving. And so this means that God's justice is loving and His love is just.
Secondly, justice in Christian thought is defined as giving to everyone his or her due. This definition is used by Augustine. It's been widely, if not universally accepted by Christians ever since. And what the story of the Good Samaritan highlights is that what my neighbor is due is my love. I think this is really a critical point, at least it was for me sort of a discovery in the project of writing this book. Because we tend to, or at least I tend to, think of my love as a gift that I confer on others. But what Scripture teaches is that love is an obligation. It's a debt we owe our neighbors. My love is what my neighbor is due. It's what he or she is owed. I mean, you see this in Romans 13:8, a chapter about government authority. And in that chapter in verse eight, Paul says, "Owe no one anything except to love each other." In other words, he recognizes that love is something we owe each other. And so to do justice, to give my neighbor his or her due is to... What they’re due is my love. So to do justice is to love my neighbor. Augustine said, I invoke Augustine a lot in my book, that justice is love ruling rightly.
I guess third, I would say on this topic that there's no borders on the neighborhood to which my love must extend. That's the point, perhaps the main point of the parable of the Good Samaritan in Luke 10. The obligation to love is universal. It extends as Jesus put it in the the Sermon on the Mount to the enemy.
Perhaps interestingly, I was writing this book, I really started reading a lot about just war theory, which I think can teach us a lot as we think about criminal justice. Perhaps the best summation of the idea of using physical force or violence in a way that loves our neighbors comes from the Oxford ethicist Nigel Biggar in his book entitled “In Defense of War.” Biggar is a professor at Oxford, he's a Christian ethicist, he's an Anglican priest, he's a just war theorist. And he writes one of the best statements I've seen on this topic. He says, and if you'll indulge me just for a second, he says, "The New Testament doesn't generate an absolute prohibition of violence, but it does generate an absolute injunction of love. Accordingly, just war doctrines claim to be a Christian ethic rests on its conception of the right use of violence as an expression of love for neighbor. This makes obvious sense when the neighbor in view is the innocent victim of unjust aggression. But the innocent victim is not the only neighbor on site. Since love is an absolute injunction applying always and everywhere, the just warrior is bound to love the unjust aggressor. His love, as Jesus made plain, must extend itself to the enemy.” I think what Biggar is saying there really, as he tries to reconcile the use of force and love in the war context really applies just as well when we're talking about judicial force that violence isn't universally prohibited, but love is universally demanded of the Christian. And that obligation to love extends to the unjust aggressor.
And I guess lastly, I'd say love means willing and seeking my neighbor's best.
Sean: That’s right.
Matt: And retaliation is not seeking my neighbor's best. Revenge is not seeking my neighbor's best. Trying to hurt someone else because they hurt me is not seeking my neighbor's best. But punishment as discipline, punishment intended to deter and to restrain the wrongdoer from doing more wrong, punishment with a goal of bringing about my neighbor's repentance, punishment designed to restore the wrongdoer to the community, punishment with the goal of restoring the peace can be a means of seeking my neighbor's best. And so if we want to love in our justice, if we want to love as we punish, then we need to do so in a way, not that harms just for harm's sake, not that harms so we can rebalance the pain scales of the universe, but rather to bring about the peace, to restore the peace, to restore the wrongdoer, and to comfort the wronged.
Scott: Matt that's really helpful because I think it's a little tricky, I think for some of our listeners to get their arms around how imprisoning someone could actually constitute love of neighbor for that person. And I could see somebody saying, "Well, isn't the fact that justice is done, isn't that enough?" But the way you articulate that I think is really helpful that, you know, there is, we are seeking the best for the person who is imprisoned. And it's not just a punitive aspect. It's not just retributive. It's also restorative. And there's a redemptive element to it as well.
Matt: Right. And I worry that in our society though, the way we think about punishment is not that we want to discipline this person to bring them back to the community, is that we want to banish them. We don't want them back.
Matt: And I think that's an unchristian way of thinking about what the point of punishment is. The point of punishment, if it's seeking someone's best, is to stop them from wrongdoing and restore them ultimately to a place in the community.
Scott: Yeah, so let's take the notion of love of neighbor really is central to your entire argument and case about reforming criminal justice. But there are some other Biblical principles that follow from that. Spell those out for us and help us understand a more fully or Biblical framework for understanding our criminal justice system.
Matt: Yeah, what's interesting is that the command to love your neighbor as yourself is one of the most, if not the most, repeated phrase in Scripture, appearing eight times. The first instance in which it appears is in Leviticus 19, in a passage that begins, "Do no injustice in court," and then it continues on at the end of the paragraph, "But love your neighbor as yourself." In other words, the idea of loving your neighbor as yourself when it first appears in Scripture appears in the context of doing legal justice to your neighbor. And I think if you then try to sort of spell out, "Well, what does that mean to do legal justice to my neighbor?" The first and primary thing you see implied in a number of passages is that loving our neighbors when it comes to criminal justice means judging them accurately. So you see this implied in Romans 13, which talks about the government bearing the sword to punish evildoers, right? Not just punish indiscriminately, it talks about who we should punish. In other words, accuracy is implied there in our exercise of punishment. Deuteronomy 19 talks about the two witness rule, again, designed to achieve accuracy in our legal judgments. There's punishment for false witnesses also in Deuteronomy 19, again, emphasizing accuracy. Zacharias 7:9 talks about rendering true judgments. So, I think the core of loving our neighbors when it comes to exercising justice is judging accurately. And then from that principle of accuracy comes several sub-principles of criminal justice, of Christian criminal justice. One of those is due process because that's the means to accuracy. I don't have a time machine, I'm not clairvoyant, I can't read minds. And so the way we accomplish accuracy is through due process. We also see in scripture the concept of impartiality, which protects accuracy from corruption by extraneous influences. Proportionality in our punishment also flows from the principle of accuracy because proportionality represents accuracy about the severity of the wrong done. In other words, we could accurately judge something to be wrong, but not everything is equally wrong. And so proportionality causes us to speak accurately about the seriousness of the wrong. And then lastly, accountability, meaning holding government officials accountable when they do wrong, is again a principle of accuracy. It's being accurate about the wrong done by those entrusted with the obligation to judge accurately.
Sean: So you've mentioned the importance of ensuring justice with accuracy and proportionality, et cetera, but when we're dealing with fallible human beings, how do we do this throughout our criminal justice system?
Matt: Yeah. So, what I would say on that is that the first important point to recognize is that I am not called upon to achieve complete justice in this life. Justice begins with me staying within my delegated authority. So, take the example of a crime committed in ancient Israel with only a single eyewitness. There was no authority delegated to humans to punish that crime. And I think you see from that that some crimes are not within the jurisdiction of human justice. And that's for our good. God's protecting us from committing further injustice in our pursuit of justice. Confident we can be that the wrongs we lack authority to judge, God possesses the authority and the commitment to judge. In fact, that's what we confess in our churches on Sundays, right? That we Christians have done this for centuries. We say, "He will come again in glory to judge the living and the dead." We take comfort as believers in the promise that all crimes will be judged, all wrongs will be set right, even if not in this life. And so, my job isn't to ensure all justice. I have no capacity to do that. God ensures that and does so ultimately and completely, but I can and must exercise the authority I've been given to achieve intermediate justice. And I do that by acting inside the boundaries that God has laid out for exercising the authority He's given me. I do that by showing a commitment to due process, to impartiality, to proportionality, and accountability. And then I ultimately trust that nothing is hid from the sight of Him with whom we have to do.
Scott: Yeah, that's really helpful, Matt, particularly the summary of those key Biblical principles that govern that. What I'd like to do with the time we have left is to look at a couple of different areas where you propose specific changes to the criminal justice system based on these principles. So one of the things you talk about is that the bail system, as it's currently constructed, is often a source of injustice. And I think it raises, I think, a really interesting question is how can it be just to imprison someone before their trial? As the bail system so often does. So how would you address that? What changes would you make to that system? Because we have to have something like a bail system for people who are considered to be flight risks. But the idea that somebody could spend a year or more in prison awaiting trial without any verdict having been handed down seems pretty unjust to me.
Matt: Right. I mean, so just to make sure your listeners understand what we're saying here; In the United States of America, you can be held in jail for years based on an accusation that you committed a crime before you ever get to trial.
Matt: So let me give you a few examples of this from the news relatively recently. In November 2021, a Mississippi man was found not guilty of murder after being held in jail for six years prior to trial.
Matt: In June of 2023, Cook County, Illinois, dropped murder charges against a man who had been in jail since 2011, 12 years waiting for trial. There's a man in Georgia today, Maurice Jimmerson, who's been behind bars for 10 years waiting for trial. And so in the United States, in theory, you have a right to bail. And in theory, you have a right to a speedy trial. But in practice, those rights aren't being honored. And so on any given day in the United States, about 500,000 people are being held prior to trial, about two thirds to three quarters of them for traffic offenses, property crimes, and minor drug charges. And what I'm saying is that what authority... I'm raising this question, what authority, what moral authority do I have to use physical violence, right, the force of holding people in jail? What authority do I have to do that for people who've been convicted of nothing? Much less people who have been convicted of nothing and the things they're charged with are relatively minor offenses. I recognize, fully recognize, that there are people who are violent threats, and so holding them prior to trial could be a form of self-defense, and there's lots of Christian reflection on the idea of self-defense. But when we're talking about traffic offenses and property crimes and minor drug charges, what moral authority do I have to hold those people in jail prior to trial? And so that's one of the questions I'm posing and pressing Christians to consider. There's been lots of studies on the effects that doing that has on people and whether it actually deters crime or exacerbates crime. And I think there's a moral question there as well. In that sense, I'd commend to folks the work of Professor Kellen Funk at Columbia University Law School. He's an evangelical Christian, a graduate of Bob Jones University, and he also has a Ph.D. in history from Princeton and a Yale law degree. He's written extensively on this topic. And I think it's a topic that Christians really need to think more about.
Sean: Another area of application is in plea bargains, and you insist that they can be a source of injustice. So explain again exactly what obviously is meant by a plea bargain and how it can be a source of injustice.
Matt: Yeah, so when people think of the criminal justice system, they think of law and order and trials. But the criminal justice system, something like 94-97% of the cases end with someone pleading guilty usually to something less than what they're charged of in return for a lesser sentence. And my view is that everybody should hate plea bargaining because plea bargaining traffics in injustice. It operates by injustice. There's a guarantee in the US Constitution, two guarantees actually. It's one of the only rights guaranteed twice that you have a right to a jury trial if you're charged with a crime. So how is it that 97% of people are giving up that right and pleading guilty? Well one of two things is going on. Either they're being threatened with a penalty after trial, if they go to trial, that is more severe than justified. Or they're being offered a penalty if they plead that is less severe than is warranted. And so the only way we get people to waive this right to jury trial is either threatening them with an unjustly long sentence or inducing them with an unduly lenient sentence. And in either event, injustice is being done. And so whatever your political orientation is, I think people should be opposed to the plea bargaining system we have in America because it traffics in injustice.
Scott: Now Matt, one Biblical principle that I didn't see come out in your book, which I suspect some of our listeners may be thinking about is the place of forgiveness. And where, if at all, does that fit in our understanding of the criminal justice system?
Matt: So, I think it fits in this way: that if you understand the goal of the justice system to be one of restoring the offender, that that's the goal, then as you think about the principle of proportionality and punishment, you have to think of two different types of proportionality. One type of proportionality is what you probably call eye for an eye, right? That the punishment is no more severe than the crime. If you, in Scripture, if you take one person's eye, you don't lose both eyes, you lose one eye. The idea that punishment is no more severe than the wrong done. And that's what I call backwards looking proportionality. Meaning if someone has committed a crime of one-eye severity, so to speak, then what they deserve, proportionally, is a punishment of one-eye in return. But there's also, I think, a principle of forward-looking proportionality, which is to say what punishment is necessary in order to bring this person to repentance and back to the community. And while one-eye might be deserved as a punishment, something less than one-eye might actually bring about repentance in this person's life. And at that point, if that person says, "You know what, I repent genuinely, sincerely," our answer should be not, "Well, we still have to take the eye." Our response should be one of what I call forward-looking proportionality, or we might say forgiveness, or we say, "Welcome back."
Sean: All right. So I've got a couple of quick questions for you, and admittedly, we will not be able to do them justice because we're pressing time, pun intended. But I'm really curious, just overall, how dire is the situation in our criminal justice system? Like how much confidence do you have in it? And I realize if we compare this to other countries, you might get a different answer versus some ideal system. But how dire is this? How dire is our criminal justice system right now?
Matt: So I guess I would answer that in two ways. One, the fact that we even have to ask that question. The fact that we don't, we can't have confidence in our system because of the issues I'm raising is itself reason for concern, even if I can't put sort of a percentage on the inaccuracy. There are serious issues around plea bargaining and around pretrial bail and around the death penalty and around disproportionate three strike sentencing that I think raise significant moral issues. But I would also say this, the question isn't, a lot of times people ask me, "Well, isn't our system the best there ever has been?" And what I say in response to that is that's not the right question. The right question is not, “Am I better than everybody else?" The question is, “Am I the best that I can be in my moment in time?” In other words, we're a particular people with particular resources at our disposal. We have a particular, as Scripture might call it, stewardship. And the question isn't, are we better than everybody else? Is it, are we achieving all the justice we can reasonably achieve with what we've been given? And I think the answer to that is no, we haven't.
Sean: That's really helpful. Last question for you. As you probed into this, you obviously had a certain experience, had a certain worldview you brought to it, but are there any issues you changed your mind on as you were researching this and kind of saw the data?
Matt: I don't know that I changed my mind in writing the book, but certainly over the course of my adult life, the most significant moral issue on which I've changed my mind related to criminal justice is the death penalty. Not because I don't believe that Scripture ever allows the death penalty. I think it does. I think you can see verses like Genesis 9:6, "Whoever sheds man's blood by man shall his blood be shed." And I think at an earlier point in my life, I sort of quit reading at Genesis 9:6, "Okay, good, the death penalty is permissible." And what I would say to your listeners sort of thinking about this issue of that's them, I would say keep reading. Because there's more in Scripture about the death penalty than just the fact that it is authorized. There's conditions put around it. And there are serious questions in the United States about the accuracy of the death penalty and the impartiality with which we impose it. I'll just give some quick statistics. Since the reinstatement of the death penalty in 1973, 8,700 people approximately have been sentenced to death in the United States. 184, 2%, we know are innocent. We condemned 184 people to death…
Matt: who had not committed the crime. And statistical modeling, because it takes time, you know, usually on average 15 years to accomplish an exoneration, statistical modeling says about 4% probably are innocent, meaning 1 in every 25. That's a serious accuracy problem. And secondly, we know race affects the death penalty. The most sophisticated statistical studies that have tried to control for up to 300 other variables have consistently shown that the race of the victim impacts who is sentenced to death. So between 1944 and 1991, 1700 people were sentenced to death, not a single white person for killing a black person. Not a single one, 1700 executions. I read an article this week that said the last time Louisiana has executed a white person for killing a black person was 1751.
Sean: Oh my gosh.
Matt: You know, I could go on and on with statistics along that line, but it is undeniable that race plays a part in who we sentence to death. And that violates the Scriptural principle of impartiality. And so with a system of death that is, it suffers from inaccuracy and suffers from racial bias, I don't think as a Christian, I can support the death penalty as administered in the United States currently.
Sean: Matt, that's really helpful. I'm looking at my co-host and I can see in his eyes that he's thinking in due time, we need to have you back for part two to unpack not only this book, but some of the very issues that you're talking about. Maybe an entire episode just on the death penalty, because you've done so much thinking here. So we really appreciate you coming on. Very, very helpful. Your book, as I mentioned to you before we started, Scott was just talking before we went on how much he personally enjoyed it, had a wonderful conversation with his son in light of it. The title again is, Reforming Criminal Justice, Reforming Criminal Justice. The author is our guest today, Matthew Martens. Thank you so much for coming on. Really, really commend the book and appreciate you joining us.
Matt: Thanks for having me.
Sean: This has been an episode of the podcast Think Biblically: Conversations on Faith and Culture. The Think Biblically podcast is brought to you by Talbot School of Theology at Biola University. We offer programs in Southern California and online, including a fully online bachelor's in Bible, theology, and apologetics. Check out biola.edu/talbot to learn more. To submit comments, ask questions, or make suggestions on issues you'd like us to cover, or guests you'd like us to consider, please email us at email@example.com. That's firstname.lastname@example.org. We're going to try to take some of these questions in future episodes. If you enjoyed today's conversation, please give us a rating on your podcast app and consider sharing it with a friend. Thank you for listening, and remember, think biblically about everything.