What Happens When the Governing Authorities Are the Wrongdoers?
Accountability
Since 1989, 3,272 men and women across the United States have been exonerated after being convicted and collectively serving 28,917 years in prison for crimes they did not commit. That’s an annual average of 96 exonerations, with the rate much higher as of late. During the nine-year period from 2014 through 2022, an average of 172 men and women were exonerated each year—about 3.3 per week. The average exoneree lost nearly nine years in prison before his or her innocence was uncovered. Many spent far longer waiting for justice to arrive.1
The criminal charge that has yielded the most wrongful convictions is murder: 1,215 exonerations (or 37 percent of all exonerations) were convicted killers who weren’t killers. Drug convictions have yielded the second most exonerations (585, or 18 percent), followed by sexual assault (357, or 11 percent) and child sex abuse (312, or 9.5 percent). Illinois leads the nation with 498 exonerations since 1989, while Texas is a distant second with 447. Of all exonerees, 1,718 were Black. Although Black men and women make up about 33 percent of the US prison population, they comprise 52 percent of the exonerations in the last thirty-four years.2
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).
The stories behind these statistics are both heartrending and maddening. At the center of each of those stories is a person, a man or woman made in the image of God and due our love. Some of these wrongful convictions are merely honest mistakes, the tragic results of criminal justice administered by well-intentioned but finite humans. But some are not. Some—too many—were calculated corruptions of justice. The best available estimate is that 57 percent of wrongful convictions involved some type of government misconduct. Those 1,927 cases involving misconduct resulted in incarceration of men and women for a combined 19,976 years. In biblical terms, the sword of the state was wielded by wrongdoers against the innocent.3
What almost no one discusses when these exonerations occur is accountability for those wrongdoers, meaning the police officer or prosecutor or judge who misbehaved in some respect. To be sure, in some states, a person wrongly convicted is legally entitled to some amount of financial compensation, typically a pittance in return for the hell they endured. But what of accountability for the individual government official who perpetrated the injustice?
The Boomerang
The scriptural principle of accuracy demands that the state use its punitive power against, but only against, the morally guilty. Punishing even a criminal defendant who was convicted can be an immoral act if that person was wrongly convicted. Those wrongful convictions can take two forms: a person may be (1) convicted of something he or she did not do or (2) convicted of something he or she did do that the law improperly criminalizes.
Due process is a means to true verdicts. Thus, to achieve accurate results in a criminal justice system, we must as a moral matter afford both the accused and the accuser all the process reasonably available to reach a correct conclusion about the defendant’s guilt or innocence.
This brings us to the next question for our consideration: What must we do, as a moral matter, about those government officials who secure the conviction of an innocent person by means of a criminal justice process that did not employ all reasonably available means to avoid that inaccurate result? The answer turns on recognizing that a government official is, in that circumstance, a moral wrongdoer. If biblical justice requires that governing authorities use all reasonable means to avoid convicting the innocent, and if a government official’s failure to do this results in the conviction and punishment of an innocent person, then that official has used the sword of the state unjustly—sinfully, to put a finer point on it. The government official has become a “wrongdoer” about whom Romans 13 speaks and against whom Paul directs that the sword of government should be wielded.
While Paul teaches in Romans 13 that the government is permitted by the law of love to use physical force against the guilty, there is no biblical authorization to use such force against the innocent. Intentionally punishing people known to be innocent would obviously be evil. But so too is “mistakenly” convicting and punishing people by means of an obviously defective justice system. It is unjust—a failure of love—for the government to operate a system of justice that does not use all reasonable means to protect the innocent from a wrongful conviction. If government officials operate such an unjust system and as a result an innocent man or woman is wrongly convicted, then those officials are themselves at moral fault. That wicked act by the authorities must, as a matter of justice and love for those victimized by them, be punished.
In other words, the biblical principle of accuracy demands as a corollary that a government official who contributed to a wrongful conviction be held accountable if the government official acted unjustly in securing that conviction. And government officials act unjustly when they operate a justice system that they know (or should know4) is defective, meaning the system does not take all reasonable means to avoid wrongful convictions. In that instance, the biblical requirement of accuracy implies that the state and its actors must themselves be held accountable for inaccurate outcomes. The law of love governs both the state and the citizen, both the ruler and the subject. If love demands that the individual citizen who commits an injustice be held accountable, then love demands no less when the perpetrator of injustice is a government official.
This is the import of Romans 13: the government itself is subject to the obligation to love. Irenaeus of Lyon (AD c. 130–c. 202), in his influential work Against Heresies, observes that Romans 13 both recognizes the authority of magistrates to bear the sword and also implies that “whatsoever they [the magistrates] do to the subversion of justice, iniquitously, and illegally, and tyrannically, in these things shall they also perish; for the just judgment of God comes equally upon all.”5 This is what political theologian Jonathan Leeman describes as the “boomerang effect” of the law of love that turns back to punish the government actor who exceeds his or her divine mandate.6 To wield the sword is not only divinely authorized but also divinely constrained. It is serious stuff. If we are to love our neighbor who is the victim of unjust acts by government officials, then those officials too must be held to account when they wield the sword unjustly.
Regardless of whether government actors are held to a higher standard, they are most certainly held by Scripture to the same standard as those whom they judge. Paul’s call to the ruler to reward the good and punish the bad is not intended to place the ruler above such accountability. The ruler too is subject to God’s standard of justice. When a police officer, prosecutor, or judge uses the physical force of the state to imprison someone in violation of Scripture’s accuracy requirement, he or she has acted, as Irenaeus puts it, “to the subversion of justice.” And as Irenaeus argues, that “magistrate” must “perish also” or suffer whatever other punishment is a just response to his or her wrong.7 The law of love demands accountability.
It is unjust—a failure of love—for the government to operate a system of justice that does not use all reasonable means to protect the innocent from a wrongful conviction.
Reasonableness, Not Perfection
To be clear, none of this is to say that the police and prosecutors and judges should be, as a matter of Christian ethics, held to a standard of perfection. We must be Christian in our approach, which means we must be realists. We live in a fallen world, and we are finite creatures. Even if government officials are acting with the best of intentions and using all reasonable means to ensure accuracy, the justice system will reach inaccurate outcomes in some cases. The conviction of an innocent person, while an injustice to that person, does not alone prove that the police, prosecutor, judge, or jury acted immorally.
A police officer isn’t necessarily committing an immoral act by arresting (that is, using actual or threatened physical force) against someone who later turns out to be innocent. The question is whether the officer used all reasonable means to determine the guilt of the person arrested. A prosecutor hasn’t necessarily committed an immoral act by prosecuting a case that results in the conviction of someone who is later determined to be innocent. The question is whether the prosecutor used all reasonable means to ensure the accuracy of the verdict. And a judge doesn’t necessarily commit an immoral act by sentencing to prison someone who was convicted but, unknown to the judge, was innocent. The question is whether the judge conducted the trial in a way that ensured all reasonable means were employed to reach a true verdict.
The principle of accountability doesn’t require the impossible. It requires the reasonable. The question I’m raising here is one of accountability for police, prosecutors, and judges when an innocent person is convicted because the system did not use all reasonable means to ensure accuracy. The relevant moral question is whether the legal proceedings that misfired in that one case included all reasonable means to avoid conviction of an innocent person. If the various government officials each used all reasonable means to ensure accuracy, then the inaccurate result is tragic but those officials are not morally responsible for that inaccuracy.
I want to be very clear about what I am and am not arguing here. If a criminal justice system is designed and operated so that it takes all reasonable means to avoid wrongful convictions, then a government official (whether judge, prosecutor, or police officer) who participates in that system is not a Romans 13 wrongdoer even if that system results in a wrongful conviction. The man or woman wrongfully convicted in that situation has most certainly suffered an injustice but it was an injustice due to human times even when the government takes all reasonable steps to prevent that. “The greatest reason for injustice is simply human limitation,” Oliver O’Donovan observes.8
At the other end of the spectrum, it should be obvious that if a police officer and prosecutor arrested and convicted someone they knew was innocent, then those officials should be held accountable. But in the middle are those cases where the police or prosecutor may sincerely believe in the defendant’s guilt and thus have a sense of unwarranted moral comfort in obtaining convictions through the use of a flawed judicial system—that is, a system that does not employ all reasonable means to avoid inaccurate results. It’s this middle case that I’m especially focused on here. And the point I’m making is that sincerity of the government official’s belief in a defendant’s guilt does not absolve the official of moral responsibility for erroneous convictions by an unreasonable process.
Again, I’m addressing something more than simply a prosecutor’s failure to follow the law during a prosecution. If a legal system is designed well and yet a wrongful conviction occurs because a prosecutor violates a procedural rule designed to ensure accuracy, then one can easily see why we would hold that prosecutor morally responsible in that instance. But I’m arguing for something more. I’m addressing moral responsibility when a prosecutor follows all the legal rules but those rules are something short of what is reasonably needed to ensure accurate results and the shortcomings of the system were knowable in advance. In that situation, the prosecutor followed the law, and that prosecutor may not have intended a wrongful conviction. But it is not morally permissible for a prosecutor to participate in a prosecution that he or she knows (or reasonably should know) will be conducted in a way that falls below the all-reasonable-means standard. “I was just following the law” is not a valid moral defense when the law is known to be procedurally unjust. And if a prosecutor knowingly elects to participate in a procedurally unjust prosecution, then he or she is morally responsible if a substantive injustice in the form of a wrongful conviction results.
Just Following the Law
Love for neighbor, and thus justice, requires that legislators, police officers, prosecutors, and judges be held accountable for the immorality that results in the conviction of innocent people.9
But here is the reality: legislators, police officers, prosecutors, and judges who commit some of these types of injustice—meaning, they follow a law that is unjust—will never face accountability in the form of a criminal prosecution, at least not in the United States. If the police officer, prosecutor, or judge follows the law, however unjust that law might be, the US Constitution’s ex post facto clause prohibits the prosecution of those government officials.10 Only in the last three types of government misconduct—where police, prosecutors, or judges fail to follow the law—is it even theoretically possible to prosecute those officials for their misconduct. For the most part, “just following the law” will be a defense that absolutely precludes criminal prosecution of a government official in the United States.
Why, then, have I spent all this time arguing that justice requires accountability for government officials who engage in misconduct? For two reasons.
First, accountability can take forms other than criminal prosecution. Voters can hold wayward government officials accountable by removing them from office for lawful but unjust conduct. The principles of accountability and moral proximity place on voters a moral obligation to hold wayward officials accountable at the ballot box. People rightly lament wrongful convictions when they come to light. Rarely do people vote to oust the prosecutors and judges whose misconduct caused those wrongful convictions. At times, the voters instead promote renegade prosecutors to the judicial bench.11
But elections aren’t the only way that we could hold government officials accountable. Accountability could also take the form of greater civil liability for those officials who unjustly violate the law. Beginning in the 1950s, American courts invented the doctrine of absolute immunity that protects legislators, courts, and prosecutors from facing federal civil rights lawsuits for their injustices.12 The police are protected by a qualified immunity that is nearly absolute.13 Even the government itself—rather than just individual officials—is largely immune from federal civil rights suits.14 As a result, one federal judge recently observed that “worthy civil rights claims are often never brought to trial . . . because [this] unholy trinity of legal doctrines . . . frequently conspires to turn winnable claims into losing ones.”15 But Congress could change all this if it wanted to—if we wanted it to. Greater accountability is only a single federal statute away.
Second, heightening awareness of the ways in which “just following the law” can violate divine justice should serve as a frightening warning to any Christian serving or contemplating service in the criminal justice system. Bearing the sword of the state as ministers of God (Rom. 13:4) carries with it a solemn responsibility to do justly as God, not man-made law, defines justice. Whether or not secular courts can reach the police, prosecutors, or judges who act unjustly, God’s divine court can and one day will.
Notes:
- “Exonerations by State,” The National Registry of Exonerations, University of Michigan, accessed April 8, 2023, https://www.law.umich.edu/special/exoneration/Pages/Exonerationsin-the-United-States-Map.aspx. The first exoneration by means of DNA technology occurred in August 1989. Rob Warden, “First DNA Exoneration: Gary Dotson,” Center on Wrongful Convictions, Bluhm Legal Clinic, Northwestern Pritzker School of Law, accessed April 18, 2022, https://www.law.northwestern.edu. Of the more than 3,250 exonerations since, 570 have been in cases where DNA evidence was present. “Exonerations by State,” The National Registry of Exonerations.
- Black inmates make up a larger share of the prison population than of the US population. John Gramlich, “Black Imprisonment Rate in the U.S. Has Fallen by a Third since 2006,” Pew Research Center, May 6, 2020, https://www.pewresearch.org; “Exonerations by State,” The National Registry of Exonerations. Looking at exonerations for murder, a group of researchers concluded that “differences in homicide rates may explain most of the enormous racial disparity in exoneration rates for murder, but not all.” Samuel R. Gross et al., Race and Wrongful Convictions in the United States 2022 (National Registry of Exonerations, 2022), 4, https://www.law. umich.edu/.
- “Exonerations by State,” The National Registry of Exonerations.
- The obligation to take all reasonable means to avoid wrongful convictions implies an obligation on the part of government officials to reasonably assure themselves that the justice system they are using against others is not defective. Willfully blinding oneself to the defects in the system is no excuse.
- Irenaeus, Against Heresies 5.24, in From Irenaeus to Grotius: A Sourcebook in Christian Political Thought, ed. Oliver O’Donovan and Joan Lockwood O’Donovan (Grand Rapids, MI: Eerdmans, 1999), 17.
- Jonathan Leeman, How the Nations Rage: Rethinking Faith and Politics in a Divided Age (Nashville, TN: Thomas Nelson, 2018), 111. James Madison famously wrote of this need for a check on government itself: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Federalist, no. 51 (1788), accessed June 13, 2022, https://guides.loc.gov/.
- Of course, not every act of misconduct by a government official in convicting an innocent person is of equal culpability. The principle of proportionality (discussed in chap. 8 of Martens, Reforming Criminal Justice) should be applied to distinguish between greater and lesser wrongs by government officials and fashion the punishment accordingly.
- Oliver O’Donovan, The Ways of Judgment (Grand Rapids, MI: Eerdmans, 2005), 144.
- There are at least nine ways in which government officials can act immorally with regard to a system of criminal justice:
1. Legislators can pass laws that unjustly define a crime.
2. Legislators can fail to enact just processes for the prosecution of crimes.
3. Police can follow lawful but unjust procedures for investigating crime.
4. Prosecutors can prosecute violations of laws that unjustly define a crime.
5. Prosecutors can follow lawful but unjust procedures for prosecuting crime.
6. Judges can preside over a prosecution carried out using lawful but unjust procedures.
7. Police can fail to follow just legal procedures for investigating crime.
8. Prosecutors can fail to follow just legal procedures for prosecuting crime.
9. Judges can fail to follow just legal procedures for presiding over trials. - U.S. Const. art. I, § 9, cl. 3. In short, the ex post facto clause prohibits retroactively declaring criminal conduct that the law deemed legal at the time the act was committed.
- Jimerson v. Payne, 957 F.3d 916, 930 n.10 (8th Cir. 2020).
- Tenney v. Brandhove, 341 U.S. 367 (1951) (absolute legislative immunity); Pierson v. Ray, 386 U.S. 547 (1967) (absolute judicial immunity); Imbler v. Pachtman, 424 U.S. 409 (1976) (absolute prosecutorial immunity).
- Pierson v. Ray, 386 U.S. 547, 557 (1967) (qualified police immunity).
- Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691 (1978).
- Wearry v. Foster, 33 F.4th 260, 278 (5th Cir. 2022) (Ho, J., dubitante).
This article is adapted from Reforming Criminal Justice: A Christian Proposal by Matthew T. Martens.
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