Crimes Against Institutions (or, Of the Inequality of Law)

Why do we punish the murder of a member of Congress, or the President, or a police officer (and there are other examples) more harshly than we do the murder of an ordinary person?  This seems to be a fundamentally anti-egalitarian way to do things, and yet it is the way that we do them now.  What difference should the status of a victim make to the punishment of the offender?  The value of every human life is equal to the value of every other human life, isn't it?  Why shouldn't it then rub our collective rhubarb that punishment for the intentional taking of a life is not distributed equally?

The most common kind of answer to these questions is consequentialist.  We have a greater need to deter the murder of politicians or police officers than we do to deter other murders.  Society couldn't function properly (or perhaps even at all) if these kinds of killings occurred without harsh punishment, and we need to drive the point home with a punishment which is harsher than it would otherwise be.

This has never seemed a very compelling answer to me.  First, what we are really talking about is not the harsh punishment itself, but the extra quantum of differential harshness imposed for the taking of these lives.  As with all arguments from deterrence, I have to think that it is quite difficult to measure whether that extra quantum of punishment serves as any additional deterrent that has not already been generated by the severity of punishment for any other murder.  Second, there is something a little question-begging in the consequentialist answer.  What is it exactly about these sorts of crimes which hampers our, or "society's," capacity to function properly, and which therefore merits enhanced, and unequal, punishment?  What society-preserving quality is really at stake?

I want to suggest a fundamentally non-consequentialist reason to punish the murder of a politician, or a judge, or a police officer, or (more controversially), of a priest, or even of a mother or father, with greater -- and therefore unequal -- severity.  Crimes against these kinds of victims are not only individual crimes; they are also crimes against institutions.  The consequentialist argument for differential punishment in these kinds of cases, I want to say, depends on the valuation of certain social institutions as intrinsically worthwhile.  It is because those institutions are good that we rightly punish more severely those people who not only murder an individual, but in so doing strike a blow against a valued social institution.

Consider this passage from Burke, in which he is depicting the egalitarian ethic that he opposes:

On this scheme of things, a king is but a man; a queen is but a woman; a woman is but an animal; and an animal not of the highest order . . . . Regicide, and parricide, and sacrilege, are but fictions of superstition, corrupting jurisprudence by destroying its simplicity.  The murder of a king, or a queen, or a bishop, or a father, are only common homicide . . . . On the principles of this mechanic philosophy, our institutions can never be embodied, if I may use the expression, in persons; so as to create in us love, veneration, admiration, or attachment.  But that sort of reason which banishes the affections is incapable of filling their place.  These public affections, combined with manners, are required sometimes as supplements, sometimes as correctives, always as aids to law. (Reflections 173, Liberty Fund ed.)

Here is the reason that we punish the murder of a judge or a politician more severely than the murder of someone else: the offense is a crime against both the individual and the institution of our polity.  A society which cherishes its government will feel that attacks against it deserve more blame, and so more punishment, than other kinds of attacks. 

This is in part why parricide and matricide were also, at one time, punished more harshly than other kinds of crimes (and why they still elicit a healthy social opprobrium): because they were blows against the institution of the family, an institution that was held very dear.  That parricide and matricide are no longer punished more harshly than other sorts of murder may (though I don't wish to overstate, as this is exceptionally difficult to know) reflect in part the diminishing importance within the social consciousness of the family as a vital institution.  The same might be said (indeed, Burke said it) for the murder of, e.g., a religious cleric.  While we no longer retain certain enhanced punishments, we still enforce others.  And that continued enforcement, I think, manifests an important inequality in the law which derives from our institutional attachments.

Two caveats:

(1) I have not addressed the issues of either mens rea or motive (they are different from one another).  In order for the sort of enhanced punishment on these essentially retributivist institutionalist grounds to be justified, one would have to inquire about the offender's mens rea.  At the very least, we might want to know whether the killing was intentional.  Also, there might be a stronger case for enhanced punishment for a crime against an institution if the offender's motive was explicitly to damage the institution.  I am not sure about this.

(2) One might object that everybody is a member of some institution or other, so that taken seriously, institutional retributivism results in an unworkably complex architecture of unequal punishments.  Lots of people are fathers and mothers, after all.  I agree that the idea of crimes against institutions, if expanded, would result in more differential punishment, and therefore in greater inequality.  I also agree that there seems to be no clean limit on the idea.  But I also think that this sort of slippery slope claim is not particularly interesting.  Yes, one would have to draw lines.  But the fact that the limits are difficult to discern does not diminish the notion that crimes against institutions are relevant to the law.