Reimagining Justice in a Broken System

We often think of justice as black and white — right versus wrong, guilty versus innocent. But the criminal justice system is rarely that simple. The role of a prosecutor, with roots stretching back centuries, sits at the heart of this complexity, shaping outcomes long before cases reach trial. It’s both a tool of efficiency and a source of ethical tension. Within a system often criticized for inconsistency, prosecutors must balance the law with the realities of human lives. For Christians in the field, these choices carry great weight. In a system driven by human fallibility and competing demands, how can faith shape the pursuit of justice?

Before we can answer that question, it's important to understand how the role of prosecutor evolved. Dating back to biblical times, it was typically the job of the aggrieved individual or, in some cases, a close relative to bring a case to local judges or leaders to be heard, have punishment pronounced, and frequently to exact the punishment ordered by the presiding official. From this framework, the concept of the Goel was born. Roughly this means “redeemer,” “vindicator,” or “avenger.” The word stands for the premise that avenging a wrong is not simply exacting punishment, but also restoring what had been broken, taken, or harmed, including for the community at large. The individuals who served as Goels represented strength and protection for victims and the community. They ensured justice was sought for those who may otherwise have been unable to seek it themselves and allowed restoration and forgiveness to being. This role of redeemer, vindicator, and avenger morphed over time and the lines between ensuring restoration and vengeance became blurred. The Colonial Dutch settlers resurrected and redefined the role in the form of their hybrid law enforcement/prosecution/judicial agents which were referred to as Schouts. The role eventually became more focused and morphed into the well-defined, modern prosecutor who serves as the voice of the government in criminal proceedings, however, the underlying roots of justice and restoration persist.

At their core, the ethical responsibilities guiding prosecutors are deeply rooted in biblical principles, though the American Bar Association (ABA) is unlikely to admit as much. Across the country, lawyers must follow state rules patterned after the ABA’s Model Rules of Professional Conduct (MRPC), providing a common ethical framework for their work. The majority of these rules apply to all attorneys in all areas of practice, but there is one particular rule that addresses the responsibilities and role of a prosecutor and provides specific things that a prosecutor “shall” and “shall not” do. What is interesting about these requirements is the underlying emphasis on preserving justice at all costs. The commentary on this rule states that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence and that special precautions are taken to prevent and to rectify the conviction of innocent persons."

In a show of respect for the guidance of the ABA and the ideological foundation that it provides, the majority of prosecutor’s offices nationally have also crafted their own mission statements which seek to emphasize these same principles. The curiosity in each of these locally promulgated mission statements is that they are influenced by their local elected prosecutor who is, at least to a degree, influenced by his/her local electorate. The expectation would be to see that “local flavor” appearing and the missions of each office varying slightly (or drastically) from somewhere like rural Idaho to a place like New York City. However, despite a vast array of societal constructs, viewpoints, and socioeconomic demographics around the nation, the underlying themes of truth, justice, and protecting the community and victims persist. These principles undergird the entire existence of prosecutors in America and form the basis for the concept of prosecutorial discretion.

So what exactly is prosecutorial discretion? Depending on your news source, you may see articles or op-eds that wax poetic about this discretion as a weapon of conservatism that is designed to systematically attack the underprivileged, or, in other places see it portrayed as a bastion of freedom that is shielding Americans from a surging tide of national anarchy and extremism. In parsing through the competing rhetoric, it is hopefully not surprising to find that neither of these positions is all that accurate and both are oversimplified versions of the truth. Although not a perfect explanation, a 2022 law review article from Stetson University comes close to accurately defining prosecutorial discretion.

“Defining prosecutorial discretion is tricky because it is often defined in relation to its context. Discretion is not the same as unlimited power, per se; it is the ability to choose from an array of options. Understanding discretion as an ability to choose only from available options makes it impossible to think of discretion outside the context of those options. For example, in terms of case selection, prosecutors have the discretion to select cases to investigate and pursue, and to decide not to pursue other cases at all. In terms of charging decision, they can choose which charges to bring forward and which to drop (within legal bounds, of course). Essentially, they choose ‘whom to charge, and for what.’ When it comes to plea bargaining, prosecutorial discretion refers to the latitude that prosecutors have in negotiations, and the autonomy they possess in making offers.”

In short, this discretion is more appropriately characterized as a series of exercises in critical thinking rather than a single, specific, decisive point of no return. State and federal statutes, guidelines, and case law also provide assistance in parsing out an appropriate outcome or range of outcomes to ensure that there is some level of parity between cases that are similarly situated factually, jurisdictionally, etc. and, as one would expect, these considerations all orbit around the aforementioned nucleal considerations of truth, justice, and community safety. This is not to say that guidance and precedence will always result in parallelism of outcomes however. There are plenty of cases where the facts are distinct, there are aggravating or mitigating factors, or there is input from an outside source (victim, witness, coroner, etc.) that may sway a prosecutor from one end of the spectrum of possibilities back to the other.

Now, even though this all may seem relatively straightforward, there is one more modern twist that requires additional consideration: rehabilitation.

As noted, the American legal system inherited biblical and colonial ideologies which were primarily focused on obtaining justice for the aggrieved. Although this is still certainly one of the primary considerations when negotiating a plea bargain, the future of the offender is also given a significant amount of thought. Questions about this abound in almost every case.

• Is this person amenable to change and rehabilitation?

• Do we know what his/her needs, weaknesses, and challenges are cognitively, physically, socioeconomically, etc.?

• What environment is most likely to produce a lasting change and impact in this individual?

• Can this person be safely introduced back into the community while beginning to engage in treatment, counseling, etc. or is that intervention necessary prior to reintegration?

As you could probably guess, most prosecutors frequently find themselves torn in two by this balancing act. A “good” case has a clear direction and compliance with guidelines, precedence, and victim restoration comes naturally, but even the best of cases can be completely upended by something as simple as a change of heart by a witness (or even a victim). Conversely, a "bad" case that is factually messy or involves a less than sympathetic victim can sometimes see a fundamental shift in bargaining simply because the results of a forensic test came in or because of the penitence and sincerity of an offender. In short, there is no “right” way to engage in plea bargaining other than to remain steadfast in the pursuit of truth, justice, and community safety. But what does this mean for a Christian in the criminal justice field?

First, we must understand that Christ Himself was no stranger to the civil courts and, despite ill treatment by them, affirmed that the authorities are to be respected because they are instituted by God (Romans 13). However, there is also a clear instruction to not allow the civil courts to trump God’s directions for a faithful life. For example, when legal decisions were difficult or unclear, Old Testament believers were directed to “arise and go up to the place that the Lord your God will choose... and you shall consult them, and they shall declare to you the decision” (Deuteronomy 17:8-9, ESV). When civil laws are ambiguous or insufficient, biblical wisdom must remain our guide.

Modern governments have created increasingly extensive and detailed laws and ordinances, subjecting citizens to hundreds of thousands of pages of binding legalism, and we are expected to carry it out with near perfection or face penalties for our shortcomings. If this sounds impossible, it’s because it is. Most of us don’t know every law and what is expected of us; in fact, most prosecutors don’t even know every criminal law. Yet, what is known are the fundamental values bestowed by God: morality, honesty, truthfulness, respect, and love imbued by grace. These values form the basis of ethical choices in every discipline, including prosecution.

When cases are complicated, facts unclear, or an offender shows genuine remorse, these core values must inform prosecutorial judgement. Ethical discernment is a fundamental human capacity essential to pursuing justice amid the inevitable imperfection of a field marked by human fallibilities. When those in the justice system remain committed to truth, accountability, and the restoration of human relationships and lives, whether through firm accountability or compassionate restoration, both the grace of Christ and the sovereignty of the Lord cannot help but be seen.

References:

• Anna D. Vaynman and Mark R. Fondarco. “Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in Our Legal System.” Stetson Law Review, vol. 52, 2022, pp. 31–34.
• “Dutch term – Schout.” Dutch Genealogy, by Yvette Hoitink, May 6, 2019. https://www.dutchgenealogy.nl/schout/
• “Goel.” Merriam-Webster.com Dictionary, Merriam-Webster, Inc. (n.d.). https://www.merriam-webster.com/dictionary/goel
  
• “Model Rules of Professional Conduct: Rule 3.8, ‘Special Responsibilities of a Prosecutor’” (Comment). American Bar Association. (n.d.). https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor/comment_on_rule_3_8/