Most lawyers pursue justice indirectly. They advocate client interests as part of an adversary system that is designed to yield justice. The system calls on prosecutors, on the other hand, to seek justice directly. As the US Supreme Court has said, the prosecutor represents the government, whose obligation “in a criminal prosecution is not that it shall win a case, but that justice shall be done” (Berger v. United States, 295 US 78, 88 (1935)). Prosecutors are not advocates for one side or the other. They determine what justice is and pursue it.
It is reasonable that we give prosecutors this special responsibility to pursue justice and not merely to convict the defendant. In a sense, they represent all the people, including the defendant. They have a responsibility to the defendant, as well as other people. In addition, it would be unfair for them to merely seek to convict the defendant. They have enormous power, far more than most of the defense attorneys they face. The police generally are at the prosecutors’ disposal. Prosecutors have “prosecutorial discretion”—they can decide whom to charge, what crimes to allege, and what penalties to pursue. A judge generally will not even see a case unless a prosecutor brings it. Merely charging most defendants with an offense is likely to ruin their lives. Prosecutors can “overcharge” defendants, charging them with numerous crimes for a single act, and place them at risk of enormous sentences unless they agree to a plea bargain. Many among the public—including many jurors—trust prosecutors and assume that whatever prosecutors allege is true. If prosecutors merely seek to convict, they are likely to gain a conviction, irrespective of the demands of justice.
There is significant overlap between the power of prosecutors and the power of judges and the system calls on both to pursue justice. Though the primary focus of this section is on prosecutors, much of what I say applies to judges as well.
Jesus, power, and justice. Some aspects of the life and teaching of Jesus might call into question the roles of prosecutors and judges. From the beginning to the end of his earthly ministry, Jesus rejected power. At his temptation, Satan offered Jesus governmental power—“all the kingdoms of the world”—and Jesus turned it down (Lk 4:5‑8). When a crowd sought to make Jesus king, he withdrew (Jn 6:15).
Not only did Jesus reject power, several principles in his Sermon on the Mount challenge the pursuit of punishment: “You have heard the law that says the punishment must match the injury: ‘An eye for an eye, and a tooth for a tooth.’ But I say, do not resist an evil person! If someone slaps you on the right cheek, offer the other cheek also” (Mt 5:38‑39, commenting on Ex 20:13; Deut 5:17).
Christians should love our enemies (Mt 5:43‑48). When wronged we should forgive (Mt 18:21‑22). Jesus demonstrated this ethic most dramatically when he prayed that God would forgive those who were crucifying him (Lk 23:34).
But the Scriptures also suggest another side to Jesus. In the Sermon on the Mount, Jesus not only teaches us to “turn the other cheek,” he affirms the value of the law: “until heaven and earth disappear, not even the smallest detail of God’s law will disappear until its purpose is achieved” (Mt 5:18).
Though he rejected power and violence, Scripture portrays Jesus as a champion of justice. Matthew identifies him as the Messiah, of whom God says in Isaiah: “He will bring justice to all who have been wronged. He will not falter or lose heart until justice prevails throughout the earth” (Is 42:3‑4, quoted in Mt 12:18‑21). At one point, Jesus himself exclaims, “Will not God bring about justice for his chosen ones, who cry out to him day and night? Will he keep putting them off? I tell you, he will see that they get justice, and quickly” (Lk 18:7‑8 NIV).
How is the Jesus of powerlessness, mercy, and forgiveness to be reconciled with the Jesus of justice and judgment? And what are the implications of these pictures of Jesus for a prosecutor or judge? Paul and the responsibilities of governing officials. Paul provides a helpful basis for reconciling Jesus’ calls for both mercy and justice.
Portions of Romans 12 are quite similar to Jesus’ teaching in the Sermon on the Mount: “Bless those who persecute you; bless and do not curse them. . . . Repay no one evil for evil. . . . Beloved, never avenge yourselves, but leave it to the wrath of God, for it is written, ‘Vengeance is mine, I will repay, says the Lord’” (Rom 12:14‑19 ESV, quoting Deut 32:35).
Only a few verses later, Paul calls on Christians to “submit to the governing authorities” and discusses the responsibilities of governing officials.
Rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer. (Rom. 13:3‑4 ESV)
Christians should leave room for God’s wrath (12:19), but the governing authority is the agent of God’s wrath (13:4). As N. T. Wright notes in his commentary on Romans: the governing authority “administer[s] punitive justice—that is, ‘wrath’; this is the point at which the authority must do what the private individual may not do (12:14‑21)” (“The Letter to the Romans,” in The New Interpreter’s Bible).
Note that when Paul praised the governing official as “God’s servant for your good,” it must have come as a shock to the letter’s recipients. Paul had seen and experienced governing officials serving the cause of evil, “but his point here concerns God’s intended order, not its corruptions.” “[God] commands submission [to the ruling authorities because they] are part of God’s good created order.” The rulers of this world are God’s “temporary subordinates whose appointed task, whether they know it or not, is to bring at least a measure of God’s order and justice to the world.”
In what might be a charge to prosecutors, judges, and other officials, N. T. Wright says:
God is not going to allow chaos to reign even in the present evil age. Chaos and anarchy enable the powerful, the rich, and the bullies to come out on top, and they invariably do. . . . [Think] of situations where magistrates and judges are perceived to be failing badly in their duty to keep this order: before too long, vigilante groups and lynch mobs arise, taking “justice” into their own hands. One of the underlying theses that binds 12:14-21 and 13:1-7 together is therefore this: justice is served not by private vengeance but by individuals trusting the authorities to keep wickedness in check (“Letter to the Romans”).
Though Jesus and Paul call for both citizens to show mercy and governing officials to exercise judgment, they are not being inconsistent. The standard of love governs both the actions of a person in private life and the actions of a prosecutor or other governing official in public life. The private person turns the other cheek when wronged and relies on the magistrate—and ultimately God—for vindication. Law is a structure of love that God gives humans for our good. Its purpose in God’s order is to enable human flourishing. Prosecutors and judges exercise an important function in “God’s good created order.”
Taken from The Servant Lawyer by Robert F. Cochran Jr. Copyright (c) 2024 by Robert Franklin Cochran Jr. Used by permission of InterVarsity Press. www.ivpress.com
