The relation between Theory of Punishment and Criminal Law Issues
The Forfeiture Theory of Criminal Punishment
Introduction
The forfeiture theory of punishment does have the most few advocates because the opinion carries a lot of contention to the reason why the forfeiture of own rights justifies the reason for punishment or hard treatment of almost or equal measure. That’s why I would take a stand and defend the forfeiture theory of punishment since its principles are reasonable and fair. The argument suggests the punishment of a criminal is justified until they forfeit their rights. If, for example, an aggressor inflicts an injury on a particular victim, that person deserves punishment almost comparable to such violation of right. If an individual violates a victim’s life, then they have forfeited their right to life. However, the theory raises many questions that form the basis for arguments, criticism, and support among the theorists. Such questions about the theory include; ‘Whom may we punish? How much do we punish? Who may punish? And why may we permissibly punish?’ (Wellman, 2012). Although the application of the forfeiture theory of punishment attracts consequences in some cases, the argument below shows why the theory is reasonably valid in most circumstances.
Description of the Reasoning for Defense
Although one may not deserve hard treatment since naturally or traditionally would seem like a question of rights, the emergence of vast propositions may neutralize the reasons or aims of punishment. The main objective of punishment also revolves around the retributivist theory. The theory also supports the rationale for punishment as a way to give the criminals the treatment they deserve as a result of abuse of others’ rights. Under that reason, the main aim is for retribution or vengeance for a wrong with the punishment of equal measure to the crime (Wellman, 2012; Alm, 2013). That is, if the offender has not respected another’s life, property, or liberty, then, the criminal law has no duty to spare their right to freedom of living in an equal measure. Then, that gives enough reasoning as to why the forfeiture of rights is subject to punishment.
Another reason why I would support the theory is that the approach itself is obvious and self-evident. First, it is vital to identify that the rights can be forfeited. Second, upon forfeiture of the rights, the theory statement bears the apparent solution or answer. Even without engaging more questions, the forfeiture theory responds to the reasons for hard treatment or punishments. That brings in enough suspicion as to why the theory has few advocates. At the same time, most of the theorists do reject the approach despite the fact that the rights can be forfeited (Wellman, 2012). That shows most of the reasoning and objection that surrounds the theory neutralizes its validity to make it less effective and applicable when the need arises. Upon that argument, there is a need to maintain a clear statement and its relevance without much objections.
Another reasoning why I would support the theory is not due to a strong objection that it is implausible for the killing of the killer, torturers to be tortured, or rapists to be raped. Upon such reasoning, rationally, one may not support or become a cheerleader for the punishment or hard treatment of the wrongdoer in an equal measure since it is hard to ignore the whole issue or rule it out (Wellman, 2012). Furthermore, the general suggestion that the raping the rapists, killing the killers, or torturing the torturers, does not provide enough reason as to why the criminal should receive treatments in the same way they happened to treat their respective victims. That means, although the offenders forfeited their rights, then they are liable to their actions and are subject to punishment or hard treatment. That means the forfeiture theory of punishment may not entirely be discarded but can reasonably compensate the victim or as a means of retribution.
As the theory stipulate, ‘punishment crime can is justified “on the ground” or can’t be justified “until” those who violate forfeit their rights…’ The phrase “on the ground” or “until” is the critical boundary that needs to be understood. The phrase gives the foundation of all the reasoning to execute the hard treatment of criminals. The phrase is understandable to everybody against doing something contrary to the law. It is as if the words gives everybody the power to choose between what is right and what is wrong whereby, once a person chooses the right, then, they are not the candidate for hard treatment. The phrase is conditional, where the violation of the conditions may lead to a punishment comparable to their criminal case. The theory is as clear as it is and requires no objections or contamination by other theorists.
The forfeiture theory is much clear such that it forms more or equal of the principles or basics of the general law in the society. The approach enumerates, one has the right to freedom, property, and life (Wellman, 2012). Therefore, a violation of either will lead to execution or punishment. The primary reason for that is to protect or promote the welfare of the innocent. The objection for that argument would be very irrelevant or impossible. That is because; it merely forms the foundation of the general rule for the conduct of people in society. A theorist who would object such an argument would lack the basis for their case. That is the reason why I would defend the theory since it protects everybody’s rights against violation or disruption. In short, it promotes and protects the welfare of the innocent. It helps keep order in society.
Some theorists would also criticize the forfeiture theory based on the ‘rights type.’ The author brings in some theorist and their proposition regarding the right types. For instance, in the book ‘The Problem of Punishment,’ by David Boonin, her primary objection is whether the ‘criminal forfeit legal rights by violating a legal right, or does she forfeit moral rights by violating moral rights’ (Wellman, 2012). In my view, the insertion of morality and legality interferes or contradicts the whole theory. Since moral rights are under the ethics, and the legal rights are granted by the authority, i.e., by the government authorities; there is no need to justify why it is morally, not just legal to execute hard treatment to the criminals. That is because consideration of either while negating the other seems implausible.
Equally to that, a state or an authority can be unfair in case it happens to punish a legally innocent person unless they happen to break the law (Wellman, 2012). Take a scenario case where a driver gets penalized for failure to come to a stop where they are required to stop, i.e., at a stop sign, where there are no such stop or traffic light signs. Such a scenario case would be unfair and unjust. Therefore, that brings in the conclusion that one has no right to be punished unless they go contrary to the requirement of the law, and, thus, one has no reason to be penalized unless they break or violate moral rights. Therefore, legal or ethical rights are all equal, and the same and failure to respect or obey either leads to forfeiture of owns rights, which justifies crime punishment. Therefore, it would be commonsensical to say that forfeiture of own rights, whether moral or legal, attracts hard treatment or punishment of equal measure to the violation of another’s moral or legal rights. Reasonably, it would be unfair and unjust to restrict the penalty to those who break legal rights and leave those who violate moral rights in public.
By concluding my defense for the forfeiture theory of punishment, it is good to suggest that the theory need not have limitations toward what rights need punishment, as long as the authorities have a full mandate to punish the criminals or the wrongdoers (Wellman, 2012). There might be legitimate questions like; how much or who to punish, or any other objection; my support concentrates on why we may punish. However, although the forfeiture theory leaves many gaps and many questions answered, I would take a stand that it is not prudent to discards or regard it as irrelevant theory, but to consider it as part of the family of theories of punishment. By that, it would be relevant to still consider it very applicable in the enforcement of the law, fight for justice, and protection or promotion of the welfare of innocent in the society.
Co-relation of the Above Theory to a Criminal Law Issue
Should Interrogational Torture be Criminal?
The above theory can presumably solve the above controversial law case. Such a question has resulted in confused arguments and contradictions among nations and judicial bodies, especially to war crime acts. A good example of such an issue applies to the Central Intelligence Agency (CIA) in the United States of America (Lowth, 2017; Johnson, 2016). The body is mandated to gather, process, and analyze data on security matters across the world.
Interrogational torture has previously been put and defined as criminal by the European Court of Human Rights (Lowth, 2017). The practice involves many activities as; waterboarding, sleep deprivation, slapping, and stress positioning, among others, to a suspected criminal. Such treatments happened to terrorist captives and prisoners in the United States from the year 2001 to 2009 during the fight against Islamic radicalism, especially in Iraq (Johnson, 2016; “LEGISinfo – Private Member’s Bill C-242 (42-1)”, 2013; Freer, 2009). However, due to the consequences as a result of such interrogation methods and activities, it was concluded that interrogational torture is an inappropriate way to handle the cases. Previously, interrogation tortures were considered fruitful as a means to force confession by criminal suspects. Instead, it would even result in a much regrettable outcome. As a result, it has ended up being a controversial issue of whether to employ it or not. Some suggest that interrogational torture ‘works,’ as in the case of President Trump (Lowth, 2017). However, some of his counterparts, like John McCain, the Armed Service Committee chairman, reject it and say it’s inappropriate and outdated.
On that notion, if the forfeiture theory can is applicable to solve such controversy, then, in my opinion, it can be on the basis that both parties can account or come in consensus for the responsibility to the heinous action or atrocities conducted by the criminal at hand. In other words, if a crime is justified and there are no opinion disparities between two warring states. However, the forfeiture theory of punishment cannot resolve a case where, the interrogating side conducts interrogation torture primarily to induce the confession of an intelligence secret from the suspect, or for spying purposes. By that, it will spiral or heighten the enmity, result in a false confession that would increase the possibility of other criminal incidences, hence, increase causalities (“LEGISinfo – Private Member’s Bill C-242 (42-1)”, 2013). An example is a fight against Islamic extremists like Jihads in Iraq and other Islamic states by the United States of America. If, for example, the United States of America can agree with an Iraq state that a certain captured criminal is held accountable or responsible for the bombing and killing some dozens of innocent civilians, then the forfeiture theory is applicable in that case. If, for example, the United States of America uses interrogational torture to acquire intelligence information about an Islamic state or for spying purpose but not primarily to punish and seek justice for the action caused against the innocent, then forfeiture theory of punishment cannot resolve the issue.
Therefore, in that case, if anybody practices ill-treatment or conduct interrogational torture for any other purpose than seek justice or punish for the sake of forfeiture of own rights, then interrogational torture cannot be justified under the criminal law. The statement that President Trump makes that he can reinstate interrogational torture and waterboarding cannot be an appropriate tool to seek justice for forfeiture of his rights. It can increase conflict with other states. Maybe, probably there are limitations or challenges in the Legislative framework. In most cases, the criminal laws from one state may not accord with that of another state. Mostly, criminal laws may lack the international standards applicable to solve specific issues concerning torture (“LEGISinfo – Private Member’s Bill C-242 (42-1)”, 2013). If that is so, then it can be hard to apply the forfeiture theory of punishment to resolve the matter. That is because the theory is applicable where there is one accord, such as the standardization of the criminal laws. By that, it can be easy to find justice against the atrocities caused by criminals such as terrorists. Furthermore, it can be easy for states such as the United States of America to justify the punishment to the criminals in an equal measure to the crime committed. In other words, the forfeiture theory of punishment can be applicable in that scenario.
In another argument, if an Intelligence Agency apprehends a suspect for a crime committed and crime justified then, the wrongdoer receives charges or punishment against their action. In contrary to that, the authorities that conduct interrogational torture negate such considerations in one way or another. The primary goal is to seek confession forcefully from a suspect, a person thought but not proven to be guilty of a certain crime. If the interrogational torture can follow the forfeiture theory of punishment principles to seek justice for the forfeiture of own rights, then, it can be the right theory to resolve the controversial issue. In other words, the suspect has to be proven guilty to receive the charges or punishment for the forfeiture of their rights. For instance, the Senegalese penal code does not find it prudent to acquire confession from a person suspected to commit a crime by intimidation or torture (“LEGISinfo – Private Member’s Bill C-242 (42-1)”, 2013). I agree with such a penal code because there are other legal processes that authorities can execute to acquire justice other than an infliction of physical injuries or others like waterboarding.
In a case where the United States of America conducts operations and practices, including the detention and interrogation of the aliens from the states that the Intelligence Agency such as (CIA) believes are associated with terrorism, becomes a problem (Freer, 2009). That is, the states associated with terrorism find it unacceptable or unlawful for the United States to conduct such activities. That poses serious and continued threats to the United States or even its allies. The reinstatement of such practices in America in a bid to solve terrorism, therefore, cannot be appropriate. There is a need for the formulation of systems that justifies the practices in a way more understandable to the state associated with atrocities. That means there are many ways that the judicial system can design more civilized means to justify punishment to the criminals associated with the terrorist attacks. Only under that, the forfeiture theory of punishment can resolve the issue in a better way for the peace and well-being of the entire community. Also, the definition of the term ‘torture’ has become problematic by most of the Legislation bodies. Such an issue requires resolution to eliminate doubts and controversies in justice systems across the world.
Deduction and Conclusion
According to my defense on the forfeiture theory of punishment and its compatibility to resolve the controversial criminal law case above, the possibility for it to succeed is conditional. That is, as long as the interrogational torture is used to punish for the forfeiture of own rights and not for any other purposes as forceful confession or spying reasons, then, the theory can apply to resolve the issue. Also, there is a need for a standardized definition of the word ‘torture.’ In this case, I doubt that the term ‘torture’ as used in the issue can mean the same as ‘punishment’ as used in the forfeiture theory. If the meaning differs, then there is a need for a clear definition between the two terms to eliminate doubts. That leaves us with unanswered and controversial questions such as, “Does punishment mean torture? Or does torture mean punishment? If, for example, ‘torture’ can mean ‘punishment’ for forfeiture of own rights, then, the theory of punishment can resolve the issue. If to ‘torture’ means something different from ‘punishment’ for forfeiture of own rights, then the forfeiture theory of punishment is very far away from resolving the controversial issue. That is because there is a problem within the issue itself to understand the term ‘torture.’ That brings in the necessity for a clear definition to clarify the usage of terms by the judicial systems, as it may yield more problems in society as a result of controversial interpretation across many judicial systems in the world.
Reference
Alm, D. (2013). Self-Defense, Punishment, and Forfeiture. Criminal Justice Ethics, 32(2), 91-107. https://doi.org/10.1080/0731129x.2013.814426
Freer, R. (2009). TURNING TO TORTURE IN A ‘NATION OF LAW.’ Journal Of Human Rights Practice, 1(1), 168-179. https://doi.org/10.1093/jhuman/hup001
Johnson, J. (2020). Donald Trump Says ‘Torture Works,’ Backs Waterboarding And ‘Much Worse.’ NDTV.com. Retrieved 27 April 2020, from https://www.ndtv.com/world-news/donald-trump-says-torture-works-backs-waterboarding-and-much-worse-1278645.
LEGISinfo – Private Member’s Bill C-242 (42-1). Parl.ca. (2013). Retrieved 27 April 2020, from https://www.parl.ca/LegisInfo/BillDetails.aspx?billId=8122740&Language=E&View=1.
Lowth, M. (2017). Does torture work? Donald Trump and the CIA. British Journal Of General Practice, 67(656), 126-126. https://doi.org/10.3399/bjgp17x689701
Wellman, C. (2012). The Rights Forfeiture Theory of Punishment. Ethics, 122(2), 371-393. https://doi.org/10.1086/663791