3 Things That Must Change in the American Justice System

A Biblical Justice Problem

The American justice system has an accuracy problem.

Since the advent of forensic DNA technology in 1989, 3,284 people have been exonerated after having been convicted of crimes. These aren’t cases of people who later got off on legal technicalities. These are people who did not commit the crimes but collectively spent more than 29,000 years in prison before their innocence was discovered. Last year was a record-setting year for exonerations, with 234—an average of nearly one every business day.

Since the death penalty was reinstated in the United States in 1973, 2% of people sentenced to death were innocent of the crimes for which they were condemned. We know this as a fact because of their subsequent exonerations, usually after decades spent on death row. Statistical modeling based on the exonerations to date suggests that the number of innocents among those sentenced to death is actually more like 4%, or one out of every twenty-five.1 What’s especially astounding about this error rate in capital cases is that these are the cases to which the justice system devotes the most resources to get it right at trial.

The American justice system has an accuracy problem. And this accuracy problem is a justice problem—a biblical justice problem.

The good news is that the cause of our accuracy problem isn’t entirely a mystery. Knowing the problem means we can fix the problem. And three changes to our system could go a long way toward fixing the accuracy problem.

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). 

First, we must provide the funding needed to assure minimally competent lawyers for the poor.

The overwhelming percentage of those charged with crimes are unable to afford a lawyer. Since the US Supreme Court’s 1963 decision in Gideon v. Wainwright, those defendants without the financial means to hire a lawyer must be provided with one by the government. As the Court explained, we aren’t truly providing people with due process if we give them a trial in which they must face off against a professional advocate (prosecutor) and navigate complicated procedural and evidentiary rules without the assistance of an attorney.

But now, sixty years after the promise of Gideon, states still don’t provide adequate funding for indigent defense. In a state-by-state series of studies, the American Bar Association concluded that states are funding approximately a third of the lawyers needed to handle the caseloads.2 In 2017, a federal judge observed that “the Louisiana legislature is failing miserably at upholding its obligations under Gideon.”3 In 2018, the Wisconsin Supreme Court observed that the compensation rate for appointed lawyers was so “abysmally low” that “most attorneys will not accept . . . appointments because they literally lose money if they take those cases.”4

This isn’t to malign the skill and dedication of those who serve as counsel for the poor; rather, it’s to recognize the limitations of lawyers assigned three times the caseload they can capably handle regardless of skill. Failing to fund sufficient indigent defense counsel is partiality against the poor and will inevitably lead to inaccurate outcomes.

Second, we must enforce the right of criminal defendants to evidence of their innocence that is in the state’s possession.

In 1963, the US Supreme Court also ruled in the case of Brady v. Maryland that criminal defendants are entitled to evidence of their innocence that is uncovered during police investigations. Again, the rationale for this ruling is straightforward: a trial wouldn’t be a meaningful exercise of truth-seeking if the state has evidence of a defendant’s innocence but is entitled to hide it from the defendant and his counsel.

And yet, in 2013, a federal appeals court judge appointed by President Reagan observed that “there is an epidemic of Brady violations abroad in the land.” Of the 234 exonerations last year, 196 were convictions infected by government misconduct. That’s 83% of all exonerations. 1,938 of the 3,284 exonerations since 1989 (59%) involved government misconduct.5

Police and prosecutors are almost never held accountable for this misconduct, including Brady violations. Prosecutors are rarely sanctioned by their state bars for Brady violations.6 Only one prosecutor has ever been jailed for a wrongful conviction resulting from a Brady violation. In that case, a Texas man spent nearly twenty-five years in prison for a murder he didn’t commit. The prosecutor responsible for that miscarriage of justice served five . . . days in jail.7

And the US Supreme Court has invented what a federal court of appeals judge appointed by President Trump referred to as an “unholy trinity” of legal doctrines that protect police and prosecutors from federal civil rights lawsuits for their misconduct.8 You may have heard of “qualified immunity,” which makes it nearly impossible to bring federal civil rights lawsuits against the police. Even worse, the Supreme Court invented the doctrine of “absolute immunity,” which makes it totally impossible to bring such lawsuits against a prosecutor even if he or she intentionally violates Brady.

To remedy this injustice—to do justly, as the prophet Micah put it—some things need to change.

Misconduct of this sort does not even seem to preclude the election of a prosecutor to the bench. In 2020, a federal court of appeals court reversed the murder convictions and life sentences of two people in Arkansas, concluding that the prosecutor and police had decades earlier “worked together to intentionally conceal” evidence from the defense.9 That prosecutor had since been elected to the Arkansas Supreme Court. After his misconduct came to light, he easily won re-election to the state supreme court in 2022.

Refusing to vote for judicial candidates who engaged in misconduct as prosecutors is the least we could do to ensure accountability. And while the Supreme Court has manufactured legal immunities to protect rogue police and prosecutors, Congress could eliminate those immunities with legislation. Congress would do so if they knew we wanted them to, if they knew we were demanding that they do so. I’m not talking about exposing police and prosecutors to frivolous lawsuits. I’m talking about allowing meritorious cases of misconduct to go forward. As the Trump-appointed appellate judge explained, “worthy civil rights claims are often never brought to trial” because qualified immunity and absolute immunity “conspir[e] to turn winning cases into losing ones.”10 But we can change that—Congress could change that—if we want them to. And we should.

Third, we need to stop coercing people into pleading guilty.

Approximately 95% of criminal cases end in guilty pleas rather than guilty verdicts. The criminal justice system is almost entirely a system of plea bargains, not jury trials. This may strike you as a welcome efficiency. But 24% of exonerations since 1989 were of people who pled guilty to crimes they didn’t commit.11

Despite the fact that the Declaration of Independence lists among its grievances with King George the denial of the jury trial and despite the fact that the US Constitution twice guarantees a jury trial in criminal cases, the American justice system is designed to coerce people into pleading guilty with threats of disproportionately severe sentences or promises of unjustly lenient sentences if they plead guilty. This might not be a problem if prosecutors were infallible. But they’re not. And the result is that innocent people are being coerced into pleading guilty rather than going to trial. To take one especially egregious case, Marilyn Mulero pled guilty to murder in 1993 and, after a trial to determine her sentence, was condemned to death in Illinois. Nearly three decades later, in August 2022, Mulero was exonerated of the murder to which she had pled guilty.12

This isn’t to suggest that prosecutors are coercing or inducing guilty pleas from people they know to be innocent. Rather, prosecutors are unduly confident in their personal ability to sort the innocent from the guilty and, having judged guilt for themselves, “everyone is pressured into pleading guilty.”13 But G. K. Chesterton astutely observed the danger in allowing a professional prosecutorial class to serve, in effect, as the final determiners of guilt:

It is a terrible business to mark a man out for the vengeance of men. But it is a thing to which a man can grow accustomed, as he can to other terrible things. . . . And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it.

Rather than allow prosecutors to determine guilt and then coerce guilty pleas, we should get back to the system the founders of our country fought a war over—the jury trial. As Chesterton put it, “Our civilisation has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. . . . [W]hen it wishes anything done which is really serious, it collects twelve of the ordinary men standing around.”14 In other words, for something as important as criminal justice, we should get back to relying on ordinary juries rather than career prosecutors.

The criminal justice system the American founders envisioned was extraordinary. It was, quite literally, revolutionary. But as we have drifted away from our constitution’s promise of jury trials, its assurance of counsel, and toward a lack of accountability for government misconduct, our justice system has developed an accuracy problem. This isn’t merely a constitutional deficiency. For the Christian, it’s a matter of biblical injustice.

To remedy this injustice—to do justly, as the prophet Micah put it—some things need to change. The good news is that we know what those things are. The question is whether we have the moral and political will to change them.


  1. Samuel R. Gross, Barbara O’Brien, Chen Hu, and Edward H. Kennedy, “Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death,” Proceedings of the National Academy of Sciences 111, no. 20 (May 20, 2014): 7324.
  2. Standing Committee on Legal Aid and Indigent Defense, American Bar Association, accessed May 14, 2023, https://www.americanbar.org/groups/legal_aid_indigent_defense/.
  3. Yarls v. Bunton, 231 F. Supp. 3d 128, 137 (M.D. La. 2017).
  4. In re the Petition to Amend SCR 81.02, No. 17-06, slip op. at 2-3, 6-11 (June 27, 2018), https://www.wicourts.gov.
  5. Exonerations by State, National Registry of Exonerations, University of Michigan, accessed May 14, 2023, https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx.
  6. Richard A. Rosen, “Disciplinary Sanctions against Prosecutors for Brady Violations: A Paper Tiger,” North Carolina Law Review 65, no. 4 (1987): 730–71; Joseph R. Weeks, “No Wrong without a Remedy: The Effective Enforcement of the Duty to Disclose Exculpatory Information,” Oklahoma City University Law Review 22, no. 3 (1997): 833–934.
  7. Alexa Ura, “Anderson to Serve 9 Days in Jail, Give Up Law License as Part of Deal,” Texas Tribune, November 8, 2013, https://www.texas tribune.org/; Claire Osborn, “How Ken Anderson Was Released after Only Five Days in Jail,” Austin American-Statesman, November 15, 2013, https://www.statesman .com/.
  8. Wearry v. Foster, 33 F.4th 260, 278 (5th Cir. 2022) (Ho, J., dubitante).
  9. Jimerson v. Payne, 957 F.3d 916, 930 (8th Cir. 2020).
  10. Wearry v. Foster, 33 F.4th 260, 278 (5th Cir. 2022) (Ho, J., dubitante).
  11. Exonerations by State, National Registry of Exonerations, University of Michigan, accessed May 14, 2023, https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx.
  12. Marilyn Mulero, National Registry of Exonerations, University of Michigan, accessed May 14, 2023, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6378.
  13. Carissa Byrne Hessick, Punishment without Trial: Why Plea Bargaining Is a Bad Deal (New York: Abrams, 2021).
  14. G. K. Chesterton, “The Twelve Men,” in Tremendous Trifles (New York: Dodd, Mead and Company, 1920), 85–87.

Matthew T. Martens is the author of Reforming Criminal Justice: A Christian Proposal.

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