Punishing Police Properly

Introduction

In this essay, I argue that crimes committed by the police in their capacity/authority as agents of the state should be considered a worse offense and punishable by higher penalties than if the same crime were committed by a civilian. I will show that we have compelling reasons to punish crimes by police more harshly than crimes by private citizens on three “classical theories” of criminal punishment: retributivism, utilitarianism, and rights forfeiture.

Retributivism

In a contemporary defense of retributivist theories of punishment, James Rachels sums up this family of theories as centering around the application of the concept of moral desert to the realm of criminal punishment. Retributivists believe that “people deserve to be treated in the same way that they choose to treat others — thus, those who treat other people badly deserve to be treated badly in return” (1), though they may differ in what they believe constitutes treating others badly and what actions are wrong enough to warrant action by the state. Regardless, they believe that “the punishment should be proportional to the crime… serious crimes merit severe punishments, while minor infractions should receive only mild punishments” (2).

I believe that a retributivist would find my argument relatively uncontroversial, so long as they accept that by breaking the law, police betray an added moral responsibility that they take on as a state official with the ability to use state-sanctioned violence. Thus, because they transgress this additional moral responsibility and treat others badly in a way that a private citizen breaking the same law does not, the police officer is deserving of greater punishment.

Why believe that police really do have additional moral duties? I can give three main reasons. First, those who hold power over others are often understood to have extra responsibilities to those who they have power over (e.g. parent and child). Since the relationship of power between police and citizens is asymmetrical, so are their responsibilities and duties towards each other. Second, police take an oath when they become a police officer to uphold the law or a similar sentiment. The International Association of Chiefs of Police oath, for example, swears “On my honor, I will never betray my integrity, my character or the public trust” and “I will always maintain the highest ethical standards and uphold the values of my community” (3). By breaking the law, police officers break a sworn oath while a private citizen has not, making the action of the police officer more deserving of punishment. Finally, because their unlawful actions can also threaten the rule of law, police officers have a duty to uphold the rule of law that a citizen does not. Though this suggestion may be controversial, as some feel that the duty to uphold the rule of law extends to citizens as well, it seems clear that the actions of state officials (and especially police officers) nonetheless present a much greater threat to the rule of law than the actions of private citizens (4). If this is the case, and the rule of law is a moral good, then the retributivist ought to agree that the lawbreaking actions of police officers are deserving of greater punishment than if those same laws were broken by private citizens.

Utilitarianism

The utilitarian view of punishment follows directly from utilitarianism as a general moral theory. Just like the act utilitarian who says that the right action is that which produces the greatest happiness for the greatest number, the utilitarian about punishment says that the right criminal punishment is the one that produces the greatest happiness for the greatest number. While retributivists have a backwards-facing theory of punishment (punishment concerns only what you have done in the past), utilitarians are more forwards-facing and frequently focus not only on punishing crime but on preventing it from happening in the first place. Utilitarians do not tout the deserved nature of the punishment as justification, since the pain and pleasure of everyone is of equal moral importance. Instead, they turn to deterrence, the ability of punishment to prevent future crime, in order to justify punishment. Deterrence can be broken down into two categories. First, general deterrence refers to the ability of punishment to dissuade others from committing the same crime as the offender, since they reason that doing so will cause them to suffer like the punished offender has. Second, specific deterrence refers to the ability of punishment to dissuade the offender from committing crimes in the future, since they know they would be punished again.

My argument here depends on the ability of higher penalties for police crime to achieve general and specific deterrence, so I must answer why we ought to have these additional penalties for police specifically — why aren’t the penalties for crime that we apply equally to everyone enough? Obviously, higher penalties achieve better specific deterrence by incapacitating the police offender for longer. However, I would also argue that higher penalties are especially useful here for general deterrence because they reflect the higher standard of ethics and conduct that we expect the police to hold themselves to. Instituting higher penalties for such a specific group can therefore be used to influence internal police culture and encourage scrutiny by the public and justice system, similar to how criminal malpractice laws specifically for doctors function.

Rights Forfeiture

Rights forfeiture theory, particularly John Locke’s version, justifies punishment in two ways with respect to rights rather than desert or utility. To justify punishment, the offender must have violated someone else’s rights (therefore forfeiting some of their own) and the punishment must make the rights of others more secure. The connection to greater punishment for police who break the law is then clear; they ought to be punished more harshly since they transgress additional rights by committing a crime compared to a civilian who commits the same crime. The wrongness of such an act by a police officer is heightened by the fact that it is not just wrong for a person to transgress the rights of others, but that it is also wrong for the state to violate the rights of its citizens. Take assault, for example. If a private citizen assaults another person, then they violate their victim’s right to life/bodily autonomy. By comparison, a police officer who assaults another person violates those same rights and more, like their right to due process and a fair trial before the state may rightfully harm them. Like utilitarians, rights forfeiture theorists would also agree that the general deterrence that greater punishment offers is highly valuable. However, rather than utility, a rights forfeiture theorist would agree because the greater severity of punishment makes the rights of others more secure by dissuading the police from violating them.

Conclusion

As I have argued, I will show that we have compelling reasons to punish crimes by police more harshly than crimes by private citizens on three “classical theories” of criminal punishment. While a number of other theories of punishment are also relevant today, I would argue that the concurrence of these three popular historical theories at least gives us good reason to consider such a policy.

Footnotes/Works Cited

1. Rachels, James. “Punishment and Desert.” Essay. In Ethics in Practice: An Anthology, edited by Hugh LaFollette, 471. Blackwell, 1997.
2. Rachels, James. “Punishment and Desert.” Essay. In Ethics in Practice: An Anthology, edited by Hugh LaFollette, 476. Blackwell, 1997.
3. “Law Enforcement Oath of Honor.” International Association of Chiefs of Police. Accessed March 31, 2023. https://www.theiacp.org/sites/default/files/all/i-j/IACP_Oath_of_Honor_En_8.5x11_Web.pdf
4. See Paul Gowder’s The Rule of Law in the Real World or “Resisting the Rule of Men” for a defense of the position that I agree with: the rule of law does not imply a duty for private citizens to follow the law and solely constrains the actions of state institutions and officials.