The Philosophy of Prisoner's Rights Retention
By: Reva Patel
Throughout history, especially during conflicting and dangerous periods in time, the retention of human rights has been a baffling and concerning concept. This is because there is no universal standard as to who is allowed to take one’s rights away and under what circumstances they are able to do so. In particular, for those individuals who have consciously and deliberately caused innocent others to forfeit their rights, the curtailment of their rights is typically discussed through a common course of sentencing by the state. This group of individuals includes, for example, prisoners.
The question of whether prisoners deserve the ability to retain all of their human rights while being punished or whether they should have some or even all of these rights taken away from them has confused and troubled many. There is little understanding as to whether prisoners should forfeit all of their rights or, conversely, retain some of their rights but have certain other rights curtailed to a certain extent. I believe that the answer to this question depends on two factors: first, the particular offenses committed by the perpetrator and, second, the severity of their actions towards others. Consequently, these factors should, as an initial matter, determine the specific rights that the perpetrator must forfeit by recognizing those rights of others that they have wrongly taken. The significance of the rights a criminal has stolen from others determines if their punishment is morally and ethically justifiable. Their corresponding form of punishment fundamentally decides what human rights they have the ability to easily exercise, such as, for example, freedom of speech, or those they have curtailed, such as their right to free movement. Thus, their punishment will result in their ability to retain or curtail certain human rights.
Throughout this essay, I will contend the idea that the rights forfeiture theory of punishment considers the crimes that prisoners commit and the severity of those crimes should serve as a basis for determining which of their own rights they should forfeit, thereby concluding that if these individuals are subject to punishment, then that punishment will either allow them to retain all of their rights or curtail some of their human rights. I believe this argument makes the most sense because it addresses the state’s aim of sanctioning a punishment to implement retribution on offenders by agreeing on the enforcement of an equalization of rights with commensurate losses.
I believe that the rights forfeiture theory of punishment should play a strong role in the verdict of the retention and curtailment of prisoner rights. According to Christopher Wellman, author of The Rights Forfeiture Theory of Punishment, the theory states that “When one wrongly harms another, for instance, one forfeits the privileged position of dominion over one’s self-regarding affairs” (373). Wellman suggests that as a criminal offender, the offense you commit robs the victim of a certain human right of their own, which in turn, from an equitable perspective, should take away yours. I strongly agree with this perspective as criminals tend to ignore the rights of their victims when they commit an offense, which, as a result, should cause them to have a commensurate loss of their own rights such as, for example, the right to liberty or
the right to freedom of movement. After one forfeits their rights, the theory then determines if the deprivation of these rights provides a sufficient enough basis for a punishment is permissible or not. However, permissibility must take into account that “Because being punished appears to violate one’s life, liberty, and/or property rights, the permissibility of punishment seems to hinge on whether punishment is compatible with these rights” (373). Wellman emphasizes that for a punishment to be permissible, it must rely on addressing the certain forfeited rights of a prisoner as opposed to a general summation in order to avoid violating an excessive amount of one’s human rights. I additionally agree with this view as I believe that in order for a punishment to be permissible, it itself must target the factors that caused the crime, which would relate to the certain rights a criminal had forfeited upon themselves as opposed to rights that did not come into vulnerability during the offense. An effective punishment relies on the forfeiture of rights.
I argue that the rights forfeiture theory of punishment is a well-grounded concept to use in order to determine what human rights a prisoner should possess as it explains the rights they have forfeited and thus what they are permissibly or non-permissibly entitled to during punishment. The more significant rights one forfeits because of the more severe their offenses, the easier it is to permit a constricting and heavy punishment upon them. This itself determines the certain extent to accessibility one has to their human rights, which is not much among a very restricting sanction, for example. With this theory in mind, basing the amount of rights a criminal has the ability to exercise during punishment allows the criminal to experience living with a deprivation of the human rights they stole from innocent others.
I additionally contend that the rights forfeiture theory of punishment ought to determine the extent to which one can exercise their human rights in prison based upon the severity of their actions. Wellman emphasizes that “...how harshly one may be punished depends on how badly one mistreats others. This is why the innocent may not permissibly be punished, those who misbehave only a little may be punished only a correspondingly small amount, and those who behave worse may be punished more severely” (373). The extent of punishment depends on the severity of a criminal's offenses towards others. Accordingly, a permissible form of punishment, such as incarceration or rehabilitation, takes into account the rights one has forfeited from mistreating others and targets the prevention of their future occurrence using a basis of the severity of the underlying criminal actions to determine factors such as how long one will be incarcerated or in rehab or what they will have to do during their time there. Wellman additionally notes the significance of forfeited rights by stating that “...in the absence of extraordinary circumstances, it is impermissible to punish someone who has not forfeited her rights” (375). A forfeiture of rights is vital and provides a basis for not only whether one should be punished or not, but also to the extent of the severity of their punishment.
To continue this line of reasoning then, I believe that one who commits a severe crime should be subject to more permissible punishment and should face harsher sanctions as a result of this - arguably, that which constricts more of their freedoms and a multitude restriction of their human rights. For instance, one who commits an act of murder arguably should lose their right to live freely in an open society, their right to work, and their right to make choices on their own will, while, one who has a parking ticket violation should not lose their right to free movement and involvement in society, but merely pay a fine.
The more severe a crime is, the less of an extent one has to exercise their human rights. Severe crimes call for more restrictive and constraining sanctions to be implemented on criminals. One should have access to fewer human rights if they have to account for more serious crimes. Additionally, according to the rights forfeiture theory of punishment, criminals who commit more severe crimes are more permissible to restrictive crimes than those who commit small violations. Therefore, offenders who carry out a greater deal of mistreatment towards society are bound to face a restriction of their liberties. I believe that this is a moral and just method for determining the rights a prisoner has while punished because it creates a level of justification with respect to the level of loss suffered by the victim and provides motivation to the criminal to not repeat their bad actions as often because of their experience living through punishment which deprived them of the rights they forfeited. In other words, it would make them think twice before engaging in the same criminal conduct again.
The significance of this argument relies on the idea that retribution is one of the two aims of the state towards the usage of punishment, along with crime reduction. With respect to retribution, the state aims to use punishment as a retributive source, which depends on what rights they forfeit and those they retain as they are met with commensurate losses and an equalization of rights when punished. Its goal, according to Richard Lippke, author of Towards a Theory of Prisoners’ Rights , is to “balance the scales of justice” as the state emphasizes an equal realization of rights with commensurate losses on criminals. This idea is based on the concept that offenders are moral beings who are able to be held responsible for their actions, which according to Lippke, means that “the state must avoid treating offenders in ways that prevent their rationally coming to regard the sanction it imposes on them as legitimate responses to their misconduct” (139). Thus, for example, incarceration is seen only as legitimate for serious crimes. It should not destroy the moral capacities of criminals, but it also should not coddle them (139). Offenders should suffer deprivations corresponding with their crimes. Since these losses stem from the crimes they committed, they consider which rights these criminals have forfeited in order to offer them the most commensurate deprivations yet equal rights as possible.
Lippke emphasizes that these losses must be commensurate or the state fails to achieve an equal realization of a rights-based interest (139). He also mentions that “Offenders who deliberately or intentionally cause harm are more culpable, and thus deserving of more punishment, than those who act recklessly or negligently” (138-139). He drives home a significant emphasis on needing to punish those who have specific aims or reasonings to commit crimes. I believe this reasoning in order to hold those accountable who truly mean to cause mistreatment among society as opposed to those who have no purpose to do so but make careless choices.
I would argue that retribution agrees with the rights forfeiture theory of punishment in terms of working to subjectify the punishments of criminals in order to avoid unfair treatment across various severities of offenses. This alternatively signifies that the rights forfeiture theory of punishment serves the goal of punishment according to the state in order to provide the utmost and optimal amount of justice throughout the system. Both retribution and the theory emphasize a need for a commensurate perspective on losses and retained rights, which enforce one another to push a message of balance and equity throughout the justice system.
Overall, the status of one’s rights while punished as a prisoner rests on the basis of their offenses and the severity of their actions towards the civil society they have violated. One commits a crime that causes violations against an innocent individual’s human rights, which in turn punishes the perpetrator by essentially forcing them to forfeit their rights to liberties and accessibilities. This allows a punishment to become permissible and the permissibility status of the criminal’s punishment pushes for either a severe or non-severe punishment. The type of penalization one receives for their crimes either allows them free liberty to exercise certain rights of theirs (to retain them) or to curtail them and restrict them; their punishment decides their accessibility to their human rights. The rights forfeiture theory of punishment stands with retribution as both rely on the emphasis of equity and proper justice throughout the system. Thus, the theory works to achieve the twin aims of the state when sanctioning punishments to criminals.
This is helpful information to consider in the future as it provides us with a framework to analyze the punishment of criminals and morality of their treatment. It also helps prisoners themselves improve as optimally as they can because they can realize the extent to which the rights they have lost and those they retain. The question of whether or not we are treating our prisoners with the rights they are or are not entitled to diminishes when we keep in mind that their sanctions are reflective of their offenses. In accordance with this viewpoint, their capabilities in terms of the human rights they are allowed to exercise or not are therefore subjective to the severity of their punishments. We must rely on the knowledge that the rights forfeiture theory of punishment provides us in order to treat prisoners with the utmost moral and ethical responsibility that we can, providing true justice to criminals and those they have mistreated.
Sources:
Lippke, R. L. (2002). Toward a theory of prisoners' rights. Ratio Juris, 15(2), 122–145. https://doi.org/10.1111/1467-9337.00201
Wellman, C. H. (2012). The Rights Forfeiture Theory of Punishment. Ethics, 122(2), 371–393. https://doi.org/10.1086/663791
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https://www.aclu.org/issues/prisoners-rights