“It takes care, it takes patience
And fear and despair to change
Though you swear to change
Who can tell if you do? It takes two”
These lyrics from Sondheim’s Into the Woods, soon to be a major Motion Picture on Christmas Day, convey a little known truth about the criminal justice system. Threats and actual violence are swirling, and it would give us all a bit of Christmas peace to learn it.
The punishee, yes the criminal Defendant (read: detainee), must consent to the punishment. This concept goes way back to the English common law:
FOR the principal aim of fociety is to protect individuals in the enjoyment of thofe abfolute rights, which were vefted in them by the immutable laws of nature ; but which could not be preferved in peace without that mutual affiftance and intercourfe, which is gained by the inftitution of friendly and focial communities…*
W. Blackstone, Commentaries on the Laws of England.
Therein lies the rub. Once you are dead, it is too late to unconsent. How does one consent? By prior acclamation – by having the prohibited conduct passed into law. (Historical note: or by having the King SAY that’s the law.)
And how will the offending officer (read: society) know if the dead punishee consented? We count votes. One does not consent in the heat of the moment. It is now clear to me that our majority does not speak for the minority in codifying “self-defense” of a police officer. Nor does the minority speak for law enforcement.
And how will we know if the [dead] punishee has consented if the laws do not reflect the views of ourselves? As the lyrics suggest, once the fear and despair reach crescendo, we will revisit these laws to protect the fabric of our society: the populace and its officers. It takes two to know if an actual change has occurred: the changed punishee and the changed righter of wrongs.
It takes two:
VII That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people is injurious to their rights and ought not to be exercised.
Virginia Declaration of Rights, June 12, 1776.
It goes without saying that some believe everything is fine as is. But I’m guessing we do want change, so that our officers can do their difficult jobs and some are not preordained for punishment. As a start, how about legal reform to reflect what American people do consent to when being stopped or in the process of being arrested? And what conditions our officers will reasonably place on putting themselves in harm’s way.
*The Olde English make their S like an F.