A Theory of Forfeiture

Abstract The aim of this chapter is to explain why forfeiture in general, and forfeiture of the right not to suffer serious sanctions and the right to the presumption of law abidingness in particular, are consistent with respect for dignity. The core of the argument is that forfeiture respects dignity by giving fair weight to autonomous choices in situations in which those choices place a burden, broadly understood, on others. The chapter starts by comparing and contrasting forfeiture with waiver and transfer of rights and examining proportionality’s role in fair forfeiture. Section 14.2 describes forfeiture in terms of the mechanics of claims: claim weakening and normative baseline shifting. Section 14.3 discusses the mechanics of forfeiture in more detail, covering the substance of what can be forfeited, the duration of forfeiture, and the fact that some rights, like the right not to be punished, should not be thought of as rights that a person can lose through forfeiture. Section 14.4 discusses the connection between necessity and forfeiture. Section 14.5 explains why wrongdoing is not necessary to forfeiture, while also explaining why the degree of culpability, when present, is relevant to the degree of forfeiture. Finally, Section 14.6 applies these points to forfeiture in the context of penal law, appealing to fairness to explain why justifications and excuses should block penalties, even though wrongness is not a prerequisite for applying penal law sanctions.