The recent media coverage of the Parole Board’s decision to release Harry Roberts after serving his (minimum) murder sentence has reignited debate over how those convicted of killing a police officer should be punished. The fact that the people Roberts murdered were police officers seems to be of great significance in the outcry about his release: not only did he murder, he murdered police officers.
The current law in England and Wales states that the murder of a police (or prison) officer in the course of duty is a factor indicating a murder of ‘particularly high seriousness’, which must attract a minimum sentence of 30 years. Other factors indicating particularly high seriousness include:
- involving use of a firearm or explosive
- for gain, such as robbery, burglary or for payment
- intended to obstruct or interfere with the course of justice
- involving sexual or sadistic conduct
- murder of two or more persons
- racially or religiously aggravated or aggravated by sexual orientation
There is one category above this in terms of seriousness: a whole life order must be passed for murders of ‘exceptionally high seriousness’, currently indicated by factors such as:
- two or more victims involving specified aggravating features
- murder of child involving abduction, sexual or sadistic motivation
- murder for political, religious or ideological cause
- previous conviction for murder
Last year Theresa May argued that an offender who kills a police officer should automatically face life in prison without parole, which would thereby make the offence comparable to those in this highest category of ‘exceptionally high seriousness’ murders. Although her recommendations have not yet been passed into law, they seem to reflect a view that is common amongst a large group of the public who are upset about the release of Harry Roberts: the murder of a police officer, this group believes, should be met with harsher punishment than the murder of a non-police officer. Not everyone agrees, however. Other commentators on the recent articles have objected on the grounds that to make such a distinction between police officers and everybody else suggests that the lives of police officers are ‘worth more’ than the lives of others.
Is this ‘worth more’ argument really proposed to justify harsher sentences for the murders of police officers? What arguments are there for and against such an enhanced penalty? In practice, sentencing is a very complicated exercise, involving the careful weighing up of a number of (often case-specific) aggravating and mitigating factors. Offences of broadly the same type can have very different features, many of which will be relevant to the sentencing decision.
Nonetheless, there is still theoretical and practical utility in trying to establish the ‘starting point’ for the ‘typical’ assault, or robbery, or murder, so that judges can then make upward or downward departures, depending on the particular features of the case. This also allows offences to be ranked in terms of their (typical) seriousness and, correspondingly, the ranking of the quantum of punishment deserved for different offences. This exercise essentially holds constant as much as possible between offences, except for the specific defining features of each particular offence. Following this approach, we can try to ask: if the only thing that differed between two murder offences was the occupation of the victim (police officer vs. non-police officer), should the perpetrator of the former receive more punishment than the latter?
In trying to answer this question, retributive and consequentialist sentencing justifications of punishment must be taken into consideration. Justifications from retributive sentencing theories rely on the idea that the offender deserves to be punished in proportion to the seriousness of her offence – a function of the harm she caused or risked and the degree of her culpability. Consequentialist justifications, in contrast, look to the consequences of punishment – deterrence; protection of the public; rehabilitation of the offender – and justify punishment on the grounds that the benefits of these consequences to society outweigh the penal costs. Although theorists are often at pains to categorise their theories as constituting one or the other, the sentencing regimes of most jurisdictions serve a variety of aims relating to both justice and society.
From a retributivist point of view, it would have to be the case that the murder of a police officer was ‘worse’ than the murder of a non-police officer – that it caused more harm or was committed with higher culpability. The first possibility – understandably rejected by commentators – is that a police officer’s life might be worth more than the life of a non-police officer. This would serve to motivate the claim that more harm is caused and therefore that the crime is more serious. This, however, is clearly false. The lives of police officers are not intrinsically worth more than anyone else’s. Even if there was any doubt over this, the sentencing law makes it explicit that the (relevant) factor indicating ‘particularly high seriousness’ is the murder of a police officer in the course of his or her duty. If the argument about worth of life was ever to be proposed then it should not matter what activity the police officer was pursuing at the time. But this is not a plausible argument and is not likely to be seriously defended by anyone.
What other desert-based arguments might there be? I can see two possible arguments. The first is that offenders who murder a police officer most often carry out this offence whilst committing, or just after committing, another offence. Culpable conduct is therefore multiplied and so more punishment is due. However, this argument is contingent on the concurrence of other culpable criminal conduct. For the murder of a police office to be more serious per se than the murder of a non-police officer, culpability would always have to be greater in the former but not the latter offence. However, this will not always be true, at least not by necessity. Moreover, any attempted or completed offences concurrent or preceding the murder of the police officer are best dealt with as separate offences, attracting their independent proportionate punishment; there is no need – and reduced theoretical and practical utility – to bundle them up with the offence of murder.
The second possible retributive argument is that police officers are more vulnerable. This is implicit in one of the statements made by Theresa May. Referring to the risks that police officers take, she said, ‘sometimes you are targeted by criminals because of what you represent’. Culpability is generally regarded as being higher when a vulnerable individual – such as someone who is very young, frail or disabled – is targeted. Police officers are made vulnerable by their work: they have to confront and control potentially dangerous people and, as such, are conspicuous targets. However, much of the reason that the vulnerability of the victim is thought to enhance culpability is because a vulnerable victim is less able to defend him or herself, and because targeting a victim specifically on this basis bespeaks a particularly reprehensible cowardly malice. Police officers, in contrast, are better able to defend themselves due to training and (sometimes) possession of defensive equipment. Further, it might be argued that police officers assume a risk of harm in choosing their career. However, it cannot be denied that although police officers may not be vulnerable in terms of strength or strategy, their salience as potential targets makes them vulnerable in other ways.
The choice of a career involving risk has also motivated consequentialist arguments for recommending harsher sentences for the murder of police officers than non-police officers. Indeed, other of Theresa May’s comments last year reflected such thinking. She said that such crimes attack the ‘fundamental basis of our society’: ‘We ask police officers to keep us safe by confronting and stopping violent criminals for us. We ask them to take risks so that we don’t have to. That is why I am clear that: life should mean life for anyone convicted of killing a police officer’. The argument seems suggest both a debt of gratitude to the police and need for general deterrence of potential offenders. According to these justifications, making ‘life mean life’ for those who murder a police officer would broadcast a message of appreciation to police officers, recognizing the risks that they take to protect citizens. It would also, perhaps, make a potential offender think twice about inflicting grievous harm on the apprehending officer, given the unqualified loss of all freedom that comes with a whole life order.
Setting the parameters of sentencing decision-making requires careful justification. The question of whether the murder of a police officer should carry a harsher sentence than other murders is complex and contentious. Although the value of the life of a person carrying out a particular occupation is not greater than the value of the life of a person carrying out a different occupation, there are more plausible retributive and consequentialist arguments that at least warrant consideration. These arguments must be disentangled and assessed in relation to the aims that sentencing is intended to promote.
Thanks for this, Hannah — really interesting work. I think you’re especially right in knocking down the arguments about greater intrinsic worth of officers’ lives, and about greater vulnerability (especially true in our age of fearsomely militarized police, clad in body armor, ensconced in armored vehicles, toting high-powered weapons).
One thing I wondered, incidental to the topic, is whether requiring judges to impose a sentence of life without parole in officer-murder cases would unacceptably restrict judges’ discretion. In the American legal system I could imagine an argument that such a rule would amount to an unconstitutional intrusion of legislative power upon the judiciary. On the other hand, the US Federal Sentencing Guidelines *do* carry a 3-to-6-level enhancement when the victim of a crime is a government officer or employee (http://www.ussc.gov/guidelines-manual/2013/2013-3a12). But our Supreme Court has held that these guidelines are not mandatory …
Anyway, to the substance of your argument, although I think we generally punish too severely, I would still defend some modest sentence enhancements in these circumstances. Although I’m not very good at speaking the language of retributivism, I do feel that the logic of our criminal punishment system sends important societal messages about the moral seriousness of offenses. And I think it’s not unjustified to publicly treat the murder of police officers as especially morally serious. This is not because police officers as people are necessarily persons of greater moral worth (indeed, with the recent spate of high-profile police brutality incidents in the US weighing on my mind, it would be crass to make that argument). Instead I’d point to the idea that violence against a police officer qua agent of the state represents a kind of double moral wrong — an act of violence against the person (of the sort we normally criminalize) and an act of violence against the state. Kind of a petit insurrection. (One has to be careful with this logic, lest it sweep up acts of civil disobedience.) Anyhow, there’s also a consequentialist argument. It’s partially about deterrence (most criminal organizations will balk at killing a police officer, and disavow members who do so), but it also goes to a utility-of-desert style argument: going along with widespread public moral sentiment by punishing this kind of crime more harshly, you might think, has positive downstream consequences. Maybe respect for law, reduced likelihood of mob justice, reduced sense of public insecurity at the notion of police being insufficiently protected, increased willingness of good candidates to become police, et cetera.
At any rate, none of this is to defend our current practices full-throatedly (much less to endorse May’s atavistic automatic-LWOP proposal). I think you’re correct that the arguments for harsher punishment of cop killers are thin on the ground. But I’m not quite at the point where I’d strike the USFSG provision from the books.
I am not a lawyer (or particularly knowledgeable in Law, sadly), but I *think* that the murder of people who have important legal or political roles is ALREADY considered a harsher crime – consider political assassination.
If not directly, because the murderer might also have to suffer the punishment for terrorism.
If that is the case and one agrees with that, then it might be consistent to apply a similar reasoning to police officers (who do not make or judge laws, but enforce them) who, as you mention, have a special role in society.
The enhanced sentencing provisions clearly provide for circumstances where the state apparatus is threatened by an unlawful act. However the politics of the situation in terrorist offences where a member of the military is murdered within an ostensibly safe environment for semi-religious/political reasons seems to be a difficulty the judiciary face at the moment. I would contend that the political actions intended to drive for some changes in sentencng regulations are intended to more clearly provide support in those areas without the obvious political/religious intonations otherwise required to meet the current criteria.
Comments are closed.