Criminal Omissions

Reforming Criminal Justice:
A Christian Proposal
by matthew t. martens
crossway, 416 pages, $34.99

Matthew Martens, a career attorney and an evangelical, believes that criminal justice needs a new ethic, specifically, a Christian one. Drawing on a range of theological and biblical texts, he argues that we should “conform such a system to Scripture”—that is, to “Christ’s love for accused and victim alike.” From the command to love our neighbor, he says, we are required to do justice for them. “That which is just is that which is loving,” Martens asserts.

So far, so uncontroversial. But the relationship between love and justice, and how exactly love should make its way into the legal system, are thorny questions. Think how differently these issues are approached by, say, Augustine, Calvin, and Martin Luther King Jr. Yet instead of providing the relevant concepts, distinctions, and elaborations, Martens leaves the claim up in the air. In effect, the reader is asked to take it for granted that his view is logical and coherent.

We need a framework because the attitude of the Christian tradition toward love and justice is often strikingly different from contemporary attitudes. Take Augustine’s view of love. The ultimate act of love for neighbor, he proposes, is not to give him his rights, but to assist him to know and love God as the highest good. This is true justice: that God receive his due from him who owes it. Famously, Augustine claims that the Roman Republic was unjust because it did not give the one true God what he is owed, which is worship.

Again, Augustine counseled the imperial military tribune, Marcellinus, that Christian love required a “kind harshness” that could necessitate coercion to force heretics back to church. The heretics in this case were the Donatists. Augustine helped prosecute the case against them, which saw their church outlawed and the adherents compelled into the Church. Whatever one makes of his argument, there is no question that Augustine based his conclusion upon an understanding of love that has had no shortage of Christian adherents.

Twentieth-century Protestants had an intense and wide-ranging debate about the meaning of love and its relationship to justice. Anders Nygren’s Agape and Eros set off a discussion that eventually involved most major Protestant ethicists of the century. John Burnaby, Karl Barth, Reinhold Niebuhr, Paul Ramsey, Gene Outka, Oliver O’Donovan, and Nicholas Wolterstorff all wrote extensively on these matters. Martens cites them approvingly, but one looks in vain for engagement with their works.

And then there is the matter of how law fits into this picture. The development of law codes, courts, legal practices, and rights is one of the great achievements of European civilization, one profoundly shaped by Christian theology—from the revival of Roman law in the eleventh and twelfth centuries, to the monumental achievement of Gratian’s Decretum, to the English common law that informed American jurisprudence. Martens leaves this rich history aside, preferring to work straight from biblical warrant to contemporary practice.

The problem is that neither our system of law nor Christian thinking about justice and love is based on the Bible alone. The typology of law as divine, natural, and positive required resources beyond the Bible in order to be fully elaborated. Augustine was a Neoplatonist who drew extensively on Plotinus, Cicero, Sallust, Virgil, and other classical authors. Roman and canon lawyers from the twelfth century drew upon a host of sources, including the Bible.

Martens divides his book into two parts. The first part argues that the gospel entails the command to do justice, which is rooted in the commandment to love God and neighbor. Against critics who worry about the dangers of contemporary progressive ideology, he proposes that social justice can and ought to be biblical. Concerning the role of government in executing this ethic, he believes: “Good and just government . . . is government that operates on the principle of neighbor love.” In the book’s second part, Martens analyzes the contemporary American justice system and offers several concrete proposals for reform.

These are themes worth discussing. Christians from the earliest centuries have been deeply concerned about injustices in society and have sought to remedy them, and the issues Martens raises—for instance, about false convictions and the unequal application of law to different groups—have ramifications for all Americans. A justice system characterized by proceduralism, in which punishment is not leavened by mercy, will lapse into inhumanity.

Yet Martens’s argument has many glaring omissions. He moves straight from biblical prohibitions against murder to the claim that the prohibition applies universally “to people wearing police uniforms and to civilians like you and me.” The problem is less Martens’s conclusion than the lack of a clear framework for it. Does all Israelite law apply to modern Americans? Does Martens perhaps believe, with many Christian ethicists, that the Ten Commandments are revealed natural law and that the government is authorized to enforce such natural law? Neither of these possibilities is explored. We are left to fill in the gaps.

Martens is right to point to Augustine as the fountainhead for thinking about love and justice in the West. As he emphasizes, Augustine connects the Christian commandment to love one’s neighbor to claims of justice, which arise from the love of God. The appeal to Augustine makes sense because it pushes back against the modern tendency to see love and justice as at odds or, as some evangelical critics believe, as unrelated to the gospel. The great act of justification is not merely a forensic act, disconnected from personal or political ethics. The gospel is the love by which God makes us his lovers and the lovers of our neighbors.

Yet Martens does not engage properly with the most obvious interlocutor: Reinhold Niebuhr, who did so much to revive interest in Augustine and who drew on Augustine’s realistic appraisal of human sin, evil, and the limited possibility for justice in human society. Martens recognizes the importance of Augustine’s realism, and he acknowledges the need for such realism in criminal justice. His appeal to the just war tradition and the tragic necessity of coercion and violence reflect his realistic assumptions. But it is not clear that he has fully appreciated the depth of either Niebuhr’s or Augustine’s realism. Both believed that humans who engage in evil and injustice do so in the name of humanitarian motives. They seek to do good. Niebuhr deployed Augustine against social reformers of his day who naively imagined that we could make the gospel into a social project without taking into account the sinfulness, pride, and ignorance of humanity and their implications for political and social life. The most dangerous political actors are not the cynics or the realists, but the righteous zealots who are bent on justice regardless of the limitations of human nature and society. When Martens asserts that “good and just government . . . is government that operates on the principle of neighbor love,” a realistic objection could instance Black Lives Matter, the George Floyd protests, and the “defund the police” movements, which claimed to be acting in the name of love but have had disastrous effects for poor and minority communities.

Martens contends that “true social justice belongs to the church,” and that “this calling to love applies as much to our individual lives as it does to our collective lives.” Once again, we are left with more questions than answers. Are ministers required to petition the government? Are normal Christians with no knowledge of the criminal justice system required to seek reform? Martens appears to think so. Not only are we each individually required to love every criminal defendant in our own states, but “every last one of the criminal defendants charged in federal court anywhere in the country, and every victim of each of those federal crimes is due your love.” Do Christians all have equal obligations in these domains? To paraphrase Kant, if ought implies can, then this endless proliferation of obligations begins to look dubious. Not everything that ought to be done, ought by each to be done. Politics, in particular, is an arena in which the magistrate is delegated a special responsibility to execute justice on behalf of the community.

Paul Ramsey objected to the view of the Church as political activist or policymaker: “In politics the church is only a theoretician. The religious communities as such should be concerned with political doctrine, and with clarifying and keeping wide open the legitimate options for choice. Their task is not the determination of policy.” Ramsey’s concern was not only that the church might usurp the role of the magistrate, but that it lacked competence to make judgments about matters in which it possessed no knowledge beyond general principles. Martens attempts to focus and limit our obligations through the idea of “moral proximity,” but what is sorely needed is a robust political theology that defines the roles and relationships of ecclesial and political authorities.

In the back half of the book, Martens surveys the past and present of America’s criminal justice system. He begins not with the common law tradition—there is no mention anywhere of William Blackstone, or of early American legal commentators such as Joseph Story—but with the Declaration of Independence and the Constitution. America’s embrace of the equality principle, Martens argues in this section, was flawed and hypocritical from the start.

Next he examines the system as it stands now, from broad questions such as what is covered by criminal law, to more granular matters such as “Jury Selection,” “Exculpatory Evidence,” “Witnesses,” and “Sentencing.” In each case, Martens provides a fairly basic and unobjectionable description of the black-letter law and process as it exists today, along with a partial history of legal development, focusing primarily on racial issues. He then evaluates the criminal justice system from the perspective of the Augustinian aphorisms developed in the first portion of his book.

Yet the reader will quickly find that these aphorisms are not sufficient to clarify difficult legal matters. Martens writes, for instance, that love requires that the law be impartial as between persons of different immutable characteristics—a principle he derives from Scripture’s injunctions against partiality. On this basis, he later asserts that “racial bias in jury selection raises questions about whether impartial justice is being distributed.”

No consideration is given to the complex nature of jury selection within our justice system. Historically, each party in a proceeding could strike a certain number of potential jurors for any reason; courts vested each adverse party with reciprocal rights to strike whomever they deemed it in their interest to strike. Changing this tradition to prevent “racial bias” would mean one of two things: either barring peremptory strikes made with the express purpose of excluding blacks from juries—which would be ineffective, as lawyers would simply hide discrimination behind pretext; or imposing upon courts a de facto cause-based standard for striking potential black jurors—which is what has happened. By imposing higher standards on the exercise of peremptory strikes, courts upset the complex balance of adversarial interests achieved in traditional jury selection and create an asymmetry: Protected classes (such as racial minorities and women) can be struck only for cause, whereas those not in protected classes (whites, men) can be struck for any reason. Martens leaves these issues thoroughly unexamined.

Thus, the basic shape of the argument, which Martens applies also to issues such as the death penalty and the punishment of white-collar crime, is: (1) Assert a general principle of criminal justice derived from Augustine or Scripture or both (major premise); (2) highlight a very narrow and contestable set of issues in modern criminal justice (minor premise); (3) conclude that Christian justice requires X outcome to fix the issues. There is little, if any, grappling with other considerations that a lawmaker must balance against the issues presented as the minor premise. Vague and open principles from the deep past are repeatedly employed to bulldoze centuries-long aspects of the Anglo-American legal tradition. Martens acknowledges in places that the devil is in the details, but rarely does he actually descend from his high level of generality.

Martens spends little time analyzing the broadly recognized goods of criminal justice systems (deterrence, incapacitation, rehabilitation). His emphasis, instead, is on proportional punishment, a consideration that he believes should limit those other goods: “The biblical approach to punishment treats proportionality as a maximum that may be imposed rather than an absolute that must be imposed.” This is a puzzling position on its own terms. (If love compels a particular punishment for a particular crime, why is that punishment merely a ceiling, and not also a floor in all cases?) It also means that social consequences may factor into the easing of a sentence, but not into making it more severe. Martens’s framework, in short, creates problems that premodern legal theorists did not face. Luminaries from Martens’s own tradition, including Calvin, exhibited clearer and more nuanced understandings of how legal regimes may at times need to be made more stringent to suit the particular strengths and weakness of a particular people or their particular social conditions.

Though Martens may not share the critical theory that underpins the modern criminal justice reform movement, his policy recommendations are hard to differentiate from the conventional wisdom that prevails in those circles. His book is dominated by racial considerations. For instance, it mentions the racial background of defendants and victims in almost every instance, even in the absence of any obvious relevance to his argument.

The pitfalls of this approach become clear in Martens’s chapter on crime, in which he asks why discriminatory firings are not prosecuted as crimes. Shortly thereafter, he argues that the harm principle should be the only allowable limit on religious liberty because otherwise blasphemy might be punished and, he assumes, we wouldn’t want that. Martens ends up taking what is, on its face, an absurd position: The state is competent to discern whether an employer had a discriminatory feeling in his heart while firing an employee, but it is not authorized to adjudicate the spoken act of blasphemy.

In the 1990s, social justice was thought to demand that the police protect urban minorities from so-called “super-predators” by passing harsh laws regarding the possession of crack cocaine. Under-policing of urban minority neighborhoods was deemed racist. Today, of course, over-policing falls under the same charge. Such are the paradoxes of criminal justice. This book will not do much to resolve them.

Josh Abbotoy is a lawyer and managing director at New Founding. Daniel Strand is professor of ethics at the Air War College in Alabama.

Image by Justin Brendel.