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Podcast: The Death Penalty, Plea Bargaining, and Other Problems with the Criminal Justice System (Matt Martens)

November 06, 2023 by: Crossway

This article is part of the The Crossway Podcast series.

Is the Criminal Justice System Broken?

In this episode, Matt Martens sets forth a distinctly Christian vision of criminal justice, highlighting how the great commandment to love God and love our neighbor should inform our approach to both the victim and the accused.

Reforming Criminal Justice

Reforming Criminal Justice

Matthew T. Martens

Attorney and seminary graduate Matthew T. Martens examines the American criminal justice system and proposes a vision for it that is based on Christ’s command to love our neighbors as ourselves (Luke 10:27). 

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Topics Addressed in This Interview:

01:31 - A Growing Mistrust in the Criminal Justice System

Matt Tully
Matt, thank you so much for joining me today on The Crossway Podcast.

Matt Martens
Thanks for having me.

Matt Tully
You have a really fascinating bio, if I do say so. You received a law degree from the University of North Carolina law school. You then went to Washington D. C. and clerked for the Supreme Court Justice William Rehnquist, who was Chief Justice at the time that you were clerking for him. Is that correct?

Matt Martens
Yes.

Matt Tully
And then you worked as a federal prosecutor for nine years, and then as a criminal defense attorney for eleven years. You’ve done lots of pro bono work, especially around issues of religious liberty, and you were actually working on behalf of a number of churches during covid, pushing back against government closure mandates. You’ve done a lot. And on top of all of that, you have a master’s degree in biblical studies from DTS (Dallas Theological Seminary). So I wonder if you could just give us a sense for what your interests are? How do all those things come together to form who you are today?

Matt Martens
That’s an interesting question. If you had asked me in high school what I was going to be, I thought I was going to be a doctor. I was a science and math person. I did not like English. I did not like writing. I liked reading as a kid. I did a lot of reading. Remarkably, and I told my kids this recently, I was terrible at public speaking in college. My worst grade, and it was a generous grade, was Intro to Public Speech. And so now it’s weird that years later I make a living speaking, reading, and writing.

Matt Tully
In maybe some of the most high pressure contexts that you can imagine.

Matt Martens
Yeah. A lot of it’s impromptu speaking and curveball questions and unexpected moves by witnesses. When I look back it’s kind of a strange thing. People ask me, How did you decide to be a lawyer? I actually have no memory of that. I do remember in early years in college looking at law schools. Back then you couldn’t go on the internet because there wasn’t any internet that anybody used, so you would actually order books, like pamphlets. You’d call up a law school and say, Could I have a copy of your admissions materials? And they’d send it to you, and you’d have the stack in my windowsill. And I remember that from my first or second year in college, but I have no memory of how I went from wanting to be a doctor to wanting to be a lawyer. But I’ve loved it. I’ve been a lawyer now for twenty-seven years. Last weekend was the twenty-seventh anniversary of my graduation from law school. And it’s been a great job. It’s been challenging. It’s been interesting. It’s given me opportunities to help people. It’s given me opportunities to serve the community and the country. It’s given me the opportunity to help churches, as you mentioned, during the COVID litigation over church shutdown. So it’s been rewarding in every respect, but I don’t really remember how I ended up on this path. But looking back I’m glad I did.

Matt Tully
What does your day job look like today?

Matt Martens
During COVID my wife and kids got some visibility into that because everybody’s working from home. And their observation is true, which is I spend most of the day on the phone, or now Zoom, doing one call after another, or responding to emails. It’s very little of what people think lawyers do, which is going to court. So much of lawyering, at least the type that I do, is outside of court. It’s negotiating with the government, it’s telephone calls with the government, it’s interviewing witnesses to understand the facts, it’s reviewing the underlying documents to try to understand the case. So my day to day is a lot of phone calls. I probably spend half to two-thirds of the day on the phone.

Matt Tully
Wow.

Matt Martens
So nobody’s making a TV show about that.

Matt Tully
Not quite as compelling of a TV drama there.

Matt Tully
I want to go back to one thing from your bio that I find interesting and that I had a question about. You started your career after clerking for a couple of different judges, and you started your career as a prosecutor. A federal prosecutor, so you’re on the side looking to potentially jail—

Matt Martens
Execute.

Matt Tully
—execute criminals. And then you made a transition nine years later to the defense side. What prompted that change? And did that play a role in maybe changing the way you were viewing how our criminal justice system works?

Matt Martens
After clerking I actually spent a couple years as a defense lawyer, maybe two years, in private practice as a very young junior attorney. And then I went into the Justice Department during the Bush administration and thought I would go for a couple years and ended up staying for nine years.

Matt Tully
Is that common for people to bounce between prosecution and defense?

Matt Martens
It’s certainly the case that it’s very common for people who are defense lawyers to have served some time as a prosecutor. I think actually one of the real failures of our system is that we view being a prosecutor as a training opportunity to become a defense lawyer. And so it’s like some of the most important decisions our government makes, we give to people who are learning on the job. Which seems entirely backwards, right? If you were thinking about how would I design a system, you would say, Well, we want the most experienced and seasoned people doing that job with great judgment. Instead, we hire people who are a year out of law school and say, Make these life and death decisions or these jail or no jail decisions. It’s kind of weird. Everyone takes that as normal. It strikes me, looking back, as kind of a weird thing that some of the most junior people in the criminal justice system are the prosecutors.

Matt Tully
Why is that?

Matt Martens
I think part of it is the pay. The people who can afford to be prosecutors are people who are early in their career and don’t face the expenses you face as your kids get older, as I know now with kids in college. And so I think that’s part of it is that the low pay attracts people early on, and people can’t stay for long either because of school loans or because of the pressures of life. And so it ends up being something people do very early in their career, generally, and do it for a few years. And so even then they don’t get a lot of experience doing it. They get experience, but they don’t grow seasoned in the job, and then they leave and go be defense lawyers.

Matt Tully
Interesting. In your eleven years of experience as a defense attorney, did that shape your view of the criminal justice system in different ways? And is that connected at all to what eventually has resulted in a book where you’re arguing for some reforms for the justice system?

Matt Martens
I think that just generally my experience in the criminal justice system, both as a prosecutor and as a defense lawyer, led me to where I am in the book. When I was in law school, I think people who know me in law school would remember me as kind of a law and order conservative guy. I’m still a conservative, but I think they would have viewed me as very law and order in our criminal classes or criminal procedure classes or criminal law classes or constitutional law classes. I think that’s how it would have been perceived at the time. And I think rightly so. And then life happens and facts confront you, and so I don’t know that it’s my underlying principles that have changed but it’s the facts that I have to run through that grid of principles. And so you can’t look at the exoneration rate, for example, and say there’s nothing wrong here. Just setting aside my theological views for a second, coming at things as a judicial conservative or a political conservative, I would be inclined to distrust the government.

Matt Tully
That’s a conservative thought.

Matt Martens
Right. Politically conservative. I actually think of it as a theological point, too, which is I’m an Augustinian, and so I come with a very robust view of the fallenness of man. Both of those then lead me—that political view and that theological view–lead me to a distrust of government and a distrust of power. As James Madison put it in Federalist 51, if men were angels, we wouldn’t need a government. And yet there are no angels to populate government, so the challenge is how you empower government while restraining government.

Matt Tully
Which is the genius of the US Constitution and checks and balances and all those basic ideas that undergird how Americans tend to think about government.

Matt Martens
So back in law school I believed in those principles that I’ve just described. I don’t know that I could have described it as Augustinian. I don’t think I knew enough theologically to describe it as that back then, but that’s what it was. And then I am confronted with how much the government is getting it wrong. And so my conservatism kicks in and says, We’ve got to fix this. Why are we trusting the government with so much power without checks on it?

10:41 - A Shocking Amount of Exonerations and Prosecutorial Misconduct

Matt Tully
Let’s dig into that right there. What are some stats or metrics that you would point to that demonstrate that things aren’t working as well as they should be.

Matt Martens
Let’s take exonerations. Prior to the advent of forensic DNA technology in 1989, the notion that the justice system convicted innocent people was widely ridiculed. That would have been scoffed at.

Matt Tully
That was a fringe kind of view.

Matt Martens
Yeah, a fringe view that it happened at any material degree. And so then forensic DNA technology comes on the scene in 1989. Barry Scheck makes it famous in the OJ trial, then he founds the Innocence Project. And this has now sort of, I think, changed the public perception both of the justice system and of the death penalty. So since forensic DNA technology in 1989, 3,284 people, as of this week, have been exonerated, not all by DNA, but 3,284 people have been exonerated after having been convicted.

Matt Tully
And put on death row.

Matt Martens
No, no, no. These are not death row. Well, some of them are, but this is all exonerations. So 3,284 people spent 29,100 years in prison for crimes they did not commit. I’m not talking about people who later got off on legal technicalities. I’m talking about people who got off because they didn’t do it.

Matt Tully
The DNA evidence made it very clear that it could not have been them.

Matt Martens
Sometimes DNA, sometimes other evidence that came to light. So they’re not all DNA. So you’re talking about 3,284 people who we convicted and then later on concluded—sometimes decades later, like three or four decades later, after they’d been in prison for decades—we realized they didn’t do it. 3,284 people spent 29,100 years in prison. And we’re counting. Last year was a record year. In 2022, there were 234 exonerations—almost one every business day. So now let’s focus in. You mentioned the death penalty. I think it’s 8,790 people have been sentenced to death since the reinstatement of the death penalty in 1973, and 184 have been exonerated. So that’s 2%. So 2% of people we are condemning to die did not commit the crime. That’s the ones we know. It takes, on average, about fifteen years for an exoneration in a capital murder case to surface.

Matt Tully
Why is that?

Matt Martens
Just because it takes time for maybe other witnesses to come forward, or in some instances it took time for DNA to develop as a technology, or it took time for this person who had been condemned to death to get actually good lawyers who could investigate his or her case. One of the big issues is whether or not indigent defense is robust enough to provide people with a meaningful defense.

Matt Tully
What is that?

Matt Martens
I’ll come back to that. Hold that thought. But just to finish on the death penalty, there are lots of reasons it takes fifteen years on average. So they’ve done statistical modeling to say not every case has been in the system for fifteen years, or maybe somebody on death row dies before they get to fifteen years. They just die of natural causes. So they’ve done statistical modeling to say based on what we know about exonerations, the 2% we know, if you extrapolate that out, what’s the likely wrongful conviction rate in capital murder cases? And the estimate, conservatively, is 4%. One out of every twenty-five.

Matt Tully
And how widely is that accepted among all sides of the political landscape? Is that a stat that virtually every attorney on either side of the equation would say, Yeah, that’s probably about right?

Matt Martens
I don’t think anybody disputes the 2%. We know 184 people have been exonerated. You can look at the list of the 184 people. You can go on deathpenaltyinfo.org. or you can go on National Registry of Exonerations at the University of Michigan. You can look at the cases. They’re all listed there. The 4%, obviously, is extrapolation. I’ve seen estimates higher. I want to be more conservative in the statistics I rely on. And the statistical study that extrapolated to the 4% was sponsored by the National Academy of Sciences. And the group of researchers, I think there were like five of them, were very credentialed. And so it seems like a pretty reliable study, though I’m sure people could dispute it. But we’re all trying to estimate and make good faith estimates.

Matt Tully
Any other core statistics that you would point people to that illustrate maybe broadly some issues that exist that you’d want to point out?

Matt Martens
I guess the other issue is the degree to which the wrongful convictions involve some type of prosecutorial misconduct. In other words, errors will happen just because we’re human, just because we’re fallible. And we could use all reasonable means, and you’re always going to have some degree of error. And that, to me, is much less troubling than error that was the result of some type of misconduct.

Matt Tully
Intentional misconduct.

Matt Martens
Yeah, intentional misconduct. Again, when you go on the National Registry of Exonerations, you can sort the exonerations by various features, including prosecutorial misconduct, for example; or official misconduct, so police or prosecutorial. And I think it’s like 59% involve some type of misconduct. So again, these aren’t accidents. This is the result of people not playing by the rules. And so I guess the one additional stat I would throw in there is conversely, we know how little crime we solve in the United States. So only about 50% of murders are solved. It fluctuates every year between 40% and 60%, but on average, only 50%.

Matt Tully
That’s surprising. I would have thought it was much higher than that.

Matt Martens
Yeah, about 50%. And then if you take all serious crimes—murder, rape, robbery, assault, car theft—something like 10–20% of that group of crimes in total is solved. So we have a massive, I would say, accuracy problem in both directions. We are both under-solving crimes and mis-prosecuting people for crimes they didn’t commit. And so those facts, to go back to your original question, fit in some ways with my distrust of government. So I said, Wait a minute. I don’t trust the government to run the FDA or the education department. I’m skeptical of whether the government can be trusted. But why am I suddenly trusting them with regard to something as serious as criminal justice when all the statistics are staring me in the face saying we have a problem here.

17:16 - Theological Principles and the Criminal Justice System

Matt Tully
All right, so that’s some of the on-the-ground facts and stats that you’ve encountered as an attorney over the years. Speak now to some of the theological principles—and you hit out this a little bit already—the theological principles or ideas that have influenced how you approach this issue.

Matt Martens
I guess I would start with, as I mentioned before, I’m thoroughly Augustinian. So I approach theology and I approach my understanding of Christianity with a view that man is—all men, all mankind, all humankind—is fallen, and we are all totally fallen. It doesn’t mean that we can’t do anything that is good, but we are thoroughly depraved, I guess to use the Calvinistic term. So that affects my view of what people do with power. And ultimately, the criminal justice system is an exercise of power; it’s an exercise of delegated power from God. And the question is, What authority were we delegated? So you have to answer that first: What am I authorized to do? The justice system is the use of physical force against other people. That’s what it is. Nobody gets arrested without actual or threatened force, and nobody goes into a jail cell without actual or threatened force.

Matt Tully
You call it “state-sponsored violence.”

Matt Martens
It’s state-sponsored violence. That’s not meant to be derisive; it’s just meant to be explanatory. The state is sponsoring, is authorizing, its agents to engage in violence. By that I mean physically harmful force against our fellow citizens. And so you have to answer the question, first of all, When are we authorized to do that? We just take it for granted, Well, that's the government. The Constitution creates government. Well, the Constitution creates government, but when did God authorize us to use force?

Matt Tully
And just to be clear, you wouldn’t say he didn’t do that?

Matt Martens
No. In fact, he did. But the question is, When? Under what conditions? Under what circumstances Within what parameters? And then the Augustinian piece is, How do we protect against the abuse of that power, even the legitimate conferral of it? How do we protect against abuse of it, which is inherent in giving that authority to fallen human creatures? And so that, to me, is the tension that I’ve tried to wrestle with in this book: How do we use power rightly? What is it to mean, as a Christian, to use power rightly in the context of a criminal justice system? How do I protect against the misuse of that power?

Matt Tully
It’s such a helpful insight because I hear you drawing out that the Christian tradition—and by that I mean the Bible itself and Christian theology arising from the Bible, but even then the history of theological and philosophical reflection of Christians on the Bible—it does present to us these two things that are in tension a little bit. On the one hand, God does give right authority to governing bodies to exercise justice on the earth and to punish evildoers. But on the other hand, the Bible wholly recognizes the sinfulness and fallibility of all people. And so somehow we have to try to marry those two things together.

Matt Martens
And that’s a matter of prudence. I think that one of the interesting things is that the Bible isn’t a criminal code. It doesn’t tell us how to precisely sort that out because I think the answer to that question will depend across time and space. What is the right prudential balance to strike in 2021 America, with all its history and all that entails, and all its resources and all that entails, and all its cultural biases and beliefs and mindsets. How you strike that balance between fallenness and authority might be different than in a tight-knit community in a Third World country. So I think that Scripture gives us guidance, but it doesn’t give us particulars.

Matt Tully
Another thing that you highlight in the book that you really emphasize is that pursuing justice is a way of loving our neighbors. You connect the pursuit of justice with neighborly love. Just unpack that a little bit for us.

Matt Martens
Interestingly, the command to love our neighbors as ourselves appears eight times in Scripture. I think it’s the most repeated phrase in Scripture. Jesus explained that it is the summary of the law, including, if you go back to the Old Testament law, the criminal law. He said when you look back at the law, including the criminal law, you can sum it all up in the command to love our neighbors as ourselves. And so the question I was really wrestling with is, If we’re using physical force, what does it mean to use physical force to love our neighbors? And not some of our neighbors. I mean, the whole point of the story of the Good Samaritan, where this phrase appears once, is that we don’t get to exclude some neighbors from the neighborhood, even the most reviled of our neighbors. That’s what the story plays on, that cultural bias. Even the most reviled neighbor in our neighborhood is someone we have to love. Jesus said it plainly in the Sermon on the Mount: “Love your enemies. Do good to those who hate you, and pray for them who despitefully use you and persecute you.” And so there’s not some exception clause that I can love the crime victims, but crime perpetrators are carved out and we don’t have to love them. And so that raises the question then, What does it mean to love people who are doing wrong to others? And is that something different than what it means to love the people who’ve had wrongs done to them? Can I do both? Don’t I have to pick? And so that was kind of what I was wrestling with is, How do you love them both?

Matt Tully
I’m struck by that question, Do I have to pick between care and love for the defendant, we’ll say, and love for the victim? And I think that is something, culturally speaking, it feels like we often do.

Matt Martens
We’re tribal. We’ve got to pick a side.

Matt Tully
Right. There are tribes, and we have to land on one side of the other. And then there’s a default emphasis on one of those two camps from those tribes. But you’re saying we don’t have the luxury, perhaps, of that as Christians. We have to love both.

Matt Martens
Yeah, and so the question is, How do you do that? And so what I found is the most helpful analogy—it turns out, there is a lot of Christian thought over the years that we can draw on—was just war theory by Augustine, and then others who’ve developed it after him—Paul Ramsey, Hugo Grotius, Nigel Biggar at Oxford today. They’ve written on this question of, as Biggar put it—and Nigel Biggar wrote a fantastic book on this topic called In Defense of War. I highly recommend it. I’ve recommended it so many times. It’s really better than any book I’ve read that wrestles with the question of, How do you reconcile forgiveness and justice? Aren’t they in competition? It’s kind of the same question we’re wrestling with in criminal justice. As Biggar put it, Can love walk the battlefield? Can you love on a battlefield? Do you have to love on a battlefield? He makes the argument, and I think he’s exactly right, there’s no carve out that says there’s certain circumstances under which we don’t have to love. As he puts it, there’s no absolute prohibition against violence, but there is an absolute injunction of love. And so as he and I corresponded about this, and he was very gracious with his time, and he observed, and I think he’s absolutely right, that war is really just an extension of criminal justice. It is different in degree but not different in kind. It is the use of force to punish and repel wrongdoers; to punish, repel, and deter wrongdoers. And that’s exactly what the justice system is on a smaller scale. And so the principles that just war theory has developed to think about are, When is it right? And in those circumstances when it’s right, what is the right way to use force against wrongdoers so that we can love both the wrongdoer and those harmed by the wrongdoer?

25:08 - Criminal Justice Reform?

Matt Tully
Before we dig into a few specific topics that I want to hear you reflect on for us, issues that relate to the criminal justice system in the US today, I do want to just talk about that term “criminal justice reform.” I think that’s a phrase that can come with a lot of baggage for a lot of people. Some people might hear that and be thinking, Oh man, here’s a guy who who wants to go easy on crime, wants to go easy on criminals, just wants people to kind of walk free from some of the most heinous things that they could do to another human being. I know that’s not what you mean. I’d love to hear you, though, articulate what don’t you mean? What aren’t you thinking of when you use the term “criminal justice reform”?

Matt Martens
The title of my book, Reforming Criminal Justice, is a play on words. The reforming is both reforming but also Reformed, as in theologically because that’s how I’m approaching this. So what I don’t mean when I am saying “reforming criminal justice”, I’m not referring to what people might think of as progressive politics. I’m not arguing for a progressive political position. I’m not even trying to argue for a conservative political position, even though my instincts are in that way. I’m trying to say, What is a Christian position, drawing on the Reformed Christian tradition and Reformed Christian reflection? The most cited authority in my book is Augustine. The second most cited authority is Calvin. If I went down the list iit’s Bavink, it’s Nigel Biggar, it’s Oliver O’Donovan, it’s Hugo Grotius. It’s people who are firmly in the conservative Reformed camp. That is where I am coming from theologically, and I’m trying to say that, drawing on that Christian ethical teaching and Christian ethical reflection, what does it mean to have a justice system that is consistent with what it means to love your neighbor as yourself? And then I want to change, I want to reform the system to reflect that Christian teaching.

Matt Tully
That’s so helpful. What would be your word to the person listening right now who their suspicion is up? They hear you say that, but they say, Okay, well that sounds good, but I’m just inherently suspicious of any kind of conversation about all the deficiencies of the criminal justice system. What would you say to that person right now listening?

Matt Martens
I would say this: I’ve spent my professional life living in the criminal justice system. I love our justice system. It was literally revolutionary. It made some astounding changes for the good in the history of the world. And what I’m asking is let’s be true to those American principles because I think those American principles, in fact, those founding principles, in fact, reflect Christian teaching. And so this is not a, Let’s dump all over America and pretend like there’s nothing good about our system. Our system’s amazing as designed. I’d love us to live up to it. Just to take one example. This is an amazing thing: we say to people, If you’re too poor, we’re not going to let the system steamroll you. We’re going to give you a lawyer.

28:27 - The Right to an Attorney

Matt Tully
Let's talk about that: the right to an attorney. We all have heard that on countless TV shows. Isn’t that great? Isn’t it working the way it should? Everyone can get an attorney.

Matt Martens
So I love it as a concept. This is an amazing concept that we say, If you’re poor, we’re still going to give you a defense. We’re going to give you someone who will act in your interest, unencumbered by loyalty to the government. We put this in the Constitution. As I say to my defense lawyer friends all the time, my public defender friends, Your job’s in the Constitution. This is an amazing thing! The problem is we don’t live up to it in practice. Let’s look at some examples. In 1963 the Supreme Court ruled in Gideon v. Wainwright that the promise of the Sixth Amendment to a right to counsel for your poor applied not only to prosecution in federal criminal cases but also in state criminal cases. So sixty years have passed. This March was the 60th anniversary of Gideon. And yet the reality is, there is no political will to provide a meaningful criminal defense to people who are poor. Why do I say that? The American Bar Association has been doing state by state studies, looking at what is the caseload for criminal cases in various states. They looked at Rhode Island, Missouri, New Mexico, Louisiana. What is the caseload? How many hours would it take to competently, not expertly, but competently defend those cases? And what is the number of lawyers that we have in those states? And what they found is that you need three times the number of lawyers that most states are providing. Or stated conversely, states are providing a third of the needed lawyers. Louisiana is notorious for this. Louisiana jails more people per capita than anywhere in the United States, and frankly, anywhere in the world. And yet their public defense system for the poor is abysmal. There are stories of defense lawyers, public defenders, in Louisiana being assigned 19,000 cases a year. Six and a half minutes per case, if you’re working a forty hour week.

Matt Tully
Over the course of the whole year?

Matt Martens
Yeah. There’s a reported case where a judge described the fact that one public defender had a trial set for every day of the year. As the judge said, even a lawyer with an “S” on his chest can’t prepare for and then try a case every day. They’re just massively under-resourced, and you shouldn’t be then surprised that people get run over and get wrongly convicted when you’re not willing to provide the needed defense attorneys. But who’s going to get behind that? What politician is running on the “more defense lawyers” platform? And so it’s a situation where our Constitution articulates an ideal that I want us to live up to because I think it’s a Christian ideal. And I explain why I think it’s a Christian ideal. I think having those lawyers is necessary to get accurate verdicts. If you give one side a professional advocate known as a prosecutor, and you create complicated procedural and evidentiary rules, and then you say to the other side, You’re on your own with your high school education, what do you think’s going to happen? That person’s going to get run over. And as the Supreme Court said, they may be convicted not because they’re guilty but because they don’t know how to present their innocence.

31:43 - Mass Incarceration

Matt Tully
Let’s talk about another contentious issue that’s probably more well known, perhaps, in the US, and that is the issue of mass incarceration. You note in your book that the US has the highest incarceration rate of any country in the Western world, and that fact is often cited as a damning fact about the US justice system. Two questions: First, is that high incarceration rate relative to the rest of the world an injustice? Is that due to an unjust criminal justice system? And number two, if it is those things, what should we do to actually reduce that number?

Matt Martens
So perhaps the most very frequently cited statistic is the fact that we have 20% of the world’s prisoners and 4%–5% of the world’s population in the United States. And that is troubling, but I think it doesn’t entirely answer the question of what’s the problem. People say “mass incarceration” and then cite that statistic. I cite that statistic in my book, but as I know, it doesn’t really answer the question about what’s the problem. Because what’s often not mentioned is that, at least in the Western world, the United States has one of the highest crime rates. So there’s also something else going on there. So it’s not surprising that our incarceration rate is higher when our crime rate is higher. So there’s a couple questions like, Why is our crime rate so much higher? I don’t think people are more fallen in the United States than in the UK or than in France, so why is our crime rate so much higher? What are the cultural factors that are driving that? So I don’t think that ultimately answers the question of, Is our system just? I think that those outputs, as I call it, raise a question, but I think you’ve got to go back and look at the machinery to answer the justice question. And that’s what I try to do in the book is go back and look at how the system operates—the machinery—to say, Is it operating justly?

Matt Tully
And that’s where you would say it’s not necessarily just the criminal justice machinery that could be playing into these high incarceration rates in the US; there might be upstream issues in our culture and in our society that are also leading to that.

Matt Martens
I think almost certainly so. I think that that’s why we have higher crime rates. So there’s something else going on. There’s a question raised, and I think there’s both a cultural question of, What’s wrong with our culture that’s driving these crime rates? And then there’s also a question of, Even setting that aside, is the machinery of justice working correctly? And I’m not a criminologist or a sociologist, so I don’t try to do what I’m not qualified to do, which is answer the cultural question. I try to look at the machinery.

34:30 - Racial Bias

Matt Tully
Another related issue to that is the issue of racial bias. And obviously, the topic of mass incarceration is often looked at through the lens of disproportionate racial representation in prisons and jails. And it makes me think of writers like Michelle Alexander and her pretty well-known, influential book on mass incarceration called The New Jim Crow. Do you agree with that? How do you view this racial bias issue, which is obviously such a controversial issue in our culture today. How does that factor into this?

Matt Martens
If you read my book or read my bibliography, you will notice that I do not cite The New Jim Crow. I’ve read The New Jim Crow. I don’t cite it and I don’t rely on it because I don’t think she’s correct. I think a better book to explain the phenomenon she’s observing is by James Forman entitled Locking Up Our Own. James Forman is a professor of law at Yale, was a former public defender in the District of Columbia. I always tell people that if you can read the book and get through the last chapter without crying, I will buy the book for you. I’m not making that offer to all your listeners—

Matt Tully
You might get some emails.

Matt Martens
It was a Pulitzer Prize winning book. It’s a very good book. Again, I’m not a sociologist, and so I don’t try to answer all the questions about race in our criminal justice system; nor is my book meant to be a book about race. I don’t shy away from the topic when it is appropriate because I don’t think you can fairly talk about criminal justice in the United States without recognizing there are ways in which race impacts the system and the system impacts people based on their race. And so I try to be honest about when I think I’m observing those without drawing all the causal connections, which I’m not qualified to do. But just to take one example that I discuss in the book is race and the death penalty, which is pretty well documented. The largest scale statistical study ever done was by a guy named David Baldus, who is a professor at the University of Iowa. And he did a study of a thousand cases, a stratified sample, that they coded for three hundred different variables and then did a regression analysis on to try to identify other things that were driving the outcomes in death penalty cases other than race. They tried to control for every other factor they could think of. And the conclusion was that at the end of the day, the race of the victim was usually determinative. Or certainly, if not determinative, it was impacting outcomes. So it’s not the race of the defendant so much as it is the race of the victim. Meaning, that you’re more likely to receive the death penalty if you kill a white person than a black person.

Matt Tully
That was the summary of the research.

Matt Martens
That was the conclusion which no one really contested. And as I discuss in my book, there’s since been released some internal memos from the Supreme Court during the year when the case involving that study was considered—McCleskey v. Kemp is the case in 1987. And there was really no dispute that the Baldus study was correct, and it has been confirmed in subsequent studies, that the race of the victim does have an impact on the outcome of death penalty cases.

Matt Tully
So you would say that you are open to the idea, or even convinced of the idea, that race is a factor in our criminal justice system and that that does lead to unjust outcomes, but maybe not to the extent that you would use language like “the new Jim Crow” in the way that some have?

Matt Martens
I would be open to the fact. I agree, for example, that race impacts the death penalty. I am open to the fact that it impacts other features. I discuss the race-based jury selection that is pretty well documented. But ultimately what I’m trying to get at in my book is not, Is the system racist? I’m trying to get at the question, Is it just? And it may be just or it may be unjust for reasons unrelated to race. And so I’m trying to answer the question, Is it just? That injustice may have a racial component, but ultimately I’m trying to focus on justice, whether race based or not.

38:41 - Plea Bargaining

Matt Tully
Let’s talk about plea bargaining. You have a problem, generally, with plea bargaining. First, explain what it is, and then why you don’t really like it very much.

Matt Martens
Plea bargaining is when someone is allowed to plead guilty to something less than the most serious crime they allegedly committed in return for a reduced sentence. Or stated another way, sometimes a threat of a higher sentence if you go to trial than you would receive if you agree to plead guilty. So essentially, a contract between the prosecutor and the defense lawyer to lessen the charge or lessen the sentence in return for a guilty plea. So, as I say, and this is what I say to everybody who will listen: everybody should hate plea bargaining. Everybody should hate plea bargaining. Because plea bargaining is premised on injustice. It functions either because we threaten an unjustly severe sentence—

Matt Tully
So that happens? You would say that’s one of the things that actually happens?

Matt Martens
It’s the only way it could happen. Either one of two things is going on: either you’re threatening an unjustly severe sentence if you go to trial, or you’re offering an unjustly lenient sentence if you don’t go to trial. Otherwise, why would anybody plead guilty? We have a constitutional guarantee twice in the US Constitution to a right to a jury trial. So who’s giving that up? Play for fumbles. Go to trial. Maybe a witness dies or falls apart on the stand. Why would you ever plead guilty unless you’re getting something? You’re either being threatened, or you’re being offered something. But the problem is whatever you’re being threatened or whatever you’re being offered is either unduly severe or unduly lenient.

Matt Tully
Okay, so we understand then why the defendant might be tempted to take a plea bargain; why is the prosecution offering one?

Matt Martens
So I think that they are doing it to reduce caseloads.

Matt Tully
So it comes back to staffing.

Matt Martens
Yeah. I think it’s a combination of they think they’re right. I don’t think prosecutors are generally out there offering plea bargains when they think somebody’s innocent. I certainly didn’t observe that when I you know in the nine years I was there. You think you’re right, and you got to move cases. And so instead of funding more prosecutors and funding more courts, it’s much easier to coerce people out of taking their jury trial right. And so whether you consider yourself a law and order conservative or a bleeding heart liberal, I think you should hate plea bargaining. Because if you’re a law and order conservative, people are getting off with something far less than they deserve in some instances. That’s the unduly lenient offer. And if you’re a bleeding heart liberal, so to speak, you should hate the threat of unjustly severe sentences. So to me it doesn’t even matter where you are politically; you should look at this system and say, This system functions on an injustice that runs against what I believe. I think we should fund the system in a way that can pursue cases to receive just sentences. I think that’s how we love all of our neighbors. It is not loving to a criminal defendant to sentence him to six months for a serious crime, like child sex abuse. It goes without saying that’s not loving to the people abused, but that is not loving to the person who committed that crime because it is not disciplining them in a way that will deter them, will stop them, from committing this. They are being denied the corrective discipline of the law. And that is a failure to love them.

42:26 - Proportional Punishment Is Loving Our Neighbor

Matt Tully
So that raises an interesting question about the impact of criminal prosecutions and jail time and other penalties imposed by the justice system in terms of deterrence. I think that’s a conversation that people often have, and there are all kinds of stats cited that maybe call into question the deterring impact of the criminal justice system writ large. Do you accept that? You kind of made that case right there that that’s why we do this and that’s how we love our criminal neighbor in these cases. But what if it’s not actually having that deterring effect on them?

Matt Martens
I think that to be just, punishment must be proportional. To be loving, punishment must be proportional. And proportionality has both a backward looking content and a forward looking content. By backward looking, I mean we look back at the wrong done and we ask, What is the maximum we can proportionally impose for this? Eye for eye. We can’t impose two eyes for an eye. We shouldn’t impose half an eye for an eye. An eye for an eye is proportionally just on a backwards looking scale. But proportionality also has a forward looking element, which is to say the goal of criminal justice is to restore you. I think this is a critical point. We treat criminal justice as a way to banish you. We don’t want you back. We want you gone and gone for as long as possible. That’s not Christian. Christian says, We want you back, and we will punish you to bring you back. But we will punish you only as much as needed to bring you back. So I can’t punish you more than an eye for an eye, but if something less than that will bring you to—to use a Christian word—repentance, then welcome back. And so I think it’s a different mindset to say, These are people made in God’s image. To love them is to will and to seek their best. And what is best for them, ultimately, is to restore them to a community.

Matt Tully
Some thoughtful Christians might push back on that and say, You’re articulating the individual Christian’s mandate, which is, as a Christian, to seek reconciliation, forgiveness (to some extent), and even restoration. But that’s not the role of the state. The state isn’t given that mandate to actually seek forgiveness and restoration. The the state doesn’t bear that burden from God.

Matt Martens
The state’s obligation is to love. Because the state is carried out by people who have an obligation to love. Interestingly, one of the eight instances of “love your neighbor as yourself” is in Romans 13, where Paul describes the power of the state to use the sword. The state has the same obligation I have because the state is me. And what the state needs to do—the state actors need to do—is justice, which is to love. And this is really important. Augustine said that justice, and this is really the Christian conception of justice, justice is giving to every man his due. And what Scripture tells us is what people are due is our love. In fact, that’s the point of the “love your neighbor as yourself” in Romans 13 is that people are owed our love. And so to give people their due is to give them our love. Now what that love will look like for someone who’s done wrong versus someone who’s been wronged is different. But my obligation is, and I think Biggar’s right, there’s not an absolute prohibition against violence in Scripture, but there is an absolute injunction of love—an absolute injunction to love. That’s the theory underlying just war theory is that you must love on the battlefield, that love can walk the battlefield, and I think love can walk the cell block. I think love can walk the courthouse. In fact, I think we’re obligated to make sure it does.

46:21 - The Death Penalty

Matt Tully
Maybe a last topic to get at related to the justice system, and that’s the death penalty. We already referenced this, and you’ve already mentioned that as a prosecutor you actually put someone on death row. But your ideas and your opinion about the death penalty has sort of shifted over the years.

Matt Martens
I describe the death penalty as probably the most significant moral topic on which my opinions changed as an adult. And again, not because my theological position has changed. I believe that Scripture authorizes the use of deadly force. I believe that it authorizes the state to bear the sword. I believe it authorizes the state to execute people under certain circumstances. And I think it’s the “under certain circumstances” that get lost. People can point to Genesis 9:6: “He who sheds man’s blood” or Romans 13: “bear the sword.” And those verses are true and I believe them and I believe they authorize the use of deadly force, but they are not the only verses in the Bible. There are other verses in the Bible that put constraints around the state’s use of force. And one of those constraints is accuracy. And I talked earlier about the accuracy concerns I have about the death penalty. And another is impartiality. Scripture speaks over and over about justice being exercised impartially because we’re imaging God who judges all men impartially, as Scripture tells us. And I’ve mentioned before the statistics about race and how it affects the death penalty in the United States. And so we have a system in the United States where I believe the death penalty is morally justified conceptually, but in practice we are not sufficiently accurate, in my view, and we are not sufficiently impartial. And so what I say is I oppose the death penalty as currently practiced in the United States. And frankly, I think every Christian should oppose the death penalty as currently practiced in the United States. We can believe it is morally justified. We should oppose the fact that 2%–4% of people sentenced to death are innocent. We should oppose the fact that our system says white lives matter more than black lives when it comes to whether we’re going to punish people for taking one of those lives. We should oppose that as Christians because it’s un-Christian. And we should strive for a day, I think, where the death penalty can be carried out justly because it is in fact a just penalty.

48:48 - Isn’t the American Justice System the Best There Ever Was?

Matt Tully
That leads into one of my final questions. Winston Churchill has this famous quote that I’m sure you’ve heard before. He said, “Democracy is the worst form of government, except for all the others [that have been tried and have failed].” I think many Americans probably feel the same way about our criminal justice system, that it’s not perfect and sometimes it makes mistakes, even grievous mistakes like with the death penalty, but that it’s the best the world has ever seen. It’s the best that we’ve ever come up with as humans. And so to be critical of it like this is just ignoring that fact or to act like that’s not the case. How would you respond to that kind of a sentiment?

Matt Martens
It’s a question I get frequently, something like, Isn’t the American justice system the best there ever was? And I don’t fight that fight. I’m not going to debate whether it’s the best there ever was. I think it’s the wrong question. I think the right question is, Is it the best we can be? See, we’re a particular people, in a particular moment in time, with particular resources. In other words, to use a biblical term, we have a particular stewardship. I have what other people around the world don’t have today, and what most people in history have never had, in terms of financial resources as a country, in terms of scientific learning—

Matt Tully
You’re talking about DNA evidence.

Matt Martens
Yeah, DNA evidence was unheard of even twenty-five or thirty-five years ago. So we have a particular stewardship. And the question is—I think the Christian question is—Are we doing all we can do with what we’ve been given? I’m not 16th century England, and I’m not 21st century South Africa; I’m 21st century America, and we are a particular people with particular resources, with a particular culture and a particular constitution; are we doing everything we can, everything we reasonably can, to achieve justice as God defines justice? I think that’s the question we should hold ourselves to. Or to or to state it in the Good Samaritan terms, Are we loving our neighbor as ourselves as much as we can? Are we doing all we reasonably can to love our neighbors as ourselves? That’s the question I want us to wrestle with as Americans and as Christian Americans.

51:04 - Lightning Round

Matt Tully
A few rapid fire questions to end us here. If you were in charge and could just snap your finger, what’s the first change that you would make to the criminal justice system today?

Matt Martens
I have two I’m wrestling with.

Matt Tully
You’ve got to pick one.

Matt Martens
Well, I think I would adequately fund defense counsel.

Matt Tully
Because that could have a knock on effect–

Matt Martens
Because that could have a knock on effect of solving some of the other issues.

Matt Tully
What’s an interesting “Did you know?” legal fact that you think most people listening (most Christians) would have no idea about or would find surprising?

Matt Martens
I think most people do not know that you can be held in jail for years prior to trial and being convicted of anything.

Matt Tully
Isn’t there a constitutional right to a “speedy trial”?

Matt Martens
There is. And the Supreme Court has ruled that that’s met, at times, by five to seven years in jail prior to trial.

Matt Tully
What’s the most memorable case you ever worked on?

Matt Martens
I guess the most famous case I ever did was when I was with the government. For a while I worked at the United States Securities and Exchange Commission, pursuing civil securities fraud violations. And I tried a case against a banker at Goldman Sachs that was very famous, and if you Google me and Goldman Sachs you’ll find lots of articles about that case. It was on the front page of The Wall Street Journal on August 1st, 2013 when we won. My picture was on page two in a big blow up. So that’s one of the most memorable cases. It’s one of those where you walk into the courthouse and they’re chasing you with cameras, and you walk out and they’re snapping pictures of you. So it was a big deal.

Matt Tully
What’s a one-sentence summary on your thoughts on 2022’s Dobbs decision?

Matt Martens
I am glad for that change, glad for that decision. I believe Roe was unjust. As a Christian I believe it was unjust. I believe abortion is murder. Elective abortion is murder. I’m glad for the law changing so that the laws in the states can change.

Matt Tully
What’s your favorite legal TV or movie where attorneys are presented in a focused sort of way?

Matt Martens
A Few Good Men.

Matt Tully
Classic. And then what’s—

Matt Martens
Or maybe My Cousin Vinny. It’s two totally different genres.

Matt Tully
And then finally, what’s a Bible verse or passage that comes to mind most often when you think about the US criminal justice system?

Matt Martens
After studying, reading, researching for this book, I see “love your neighbor as yourself” in a new way. I see it as a verse that’s directly applicable to the justice system. When you go back to Leviticus 19, which is the first occurrence, the passage begins, “Do no injustice in court, but love your neighbor as yourself.” The concept of loving your neighbor as yourself was rooted in an obligation to love your neighbor in court. And I think that that more than anything has jumped out to me and has been sort of ingrained and burned into my mind—to see that God cares about how the authority he delegated is used against our neighbors.

Matt Tully
Matt, thank you so much for taking the time today to talk with me and answer these questions that I think many of us have about the criminal justice system.

Matt Martens
Thanks. Thanks for having me.

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