Voters in April 2020 approved an amendment to the State Constitution that, its supporters incorrectly say, would "level the playing field" for victims of crime.
WJI and four individual plaintiffs sued to invalidate the amendment and a judge struck it down in November 2020, but stayed his ruling to allow the state to appeal. The judge, Dane County Circuit Judge Frank D. Remington, said the ballot question that described the full amendment misled voters and did adequately describe the amendment.
“Wisconsin voters deserve no less than to be asked the right question(s),” he wrote. “Wisconsin voters cannot and should not be misled or deceived if the outcome of the ballot question is to have full force and effect of law.”
His full decision is here.
In reality the proposal, called "Marsy's Law," pushes the criminal justice system pushes the legal process so far to the prosecution's side that violates the U.S. Constitution, interferes with law enforcement's ability to provide information that members of the public need to better protect their safety, and be costly to local taxpayers to implement. Milwaukee County District Attorney John Chisholm called Marsy's Law an "unfunded mandate."
The State Constitution already included a section on victims' rights:
WJI and four individual plaintiffs sued to invalidate the amendment and a judge struck it down in November 2020, but stayed his ruling to allow the state to appeal. The judge, Dane County Circuit Judge Frank D. Remington, said the ballot question that described the full amendment misled voters and did adequately describe the amendment.
“Wisconsin voters deserve no less than to be asked the right question(s),” he wrote. “Wisconsin voters cannot and should not be misled or deceived if the outcome of the ballot question is to have full force and effect of law.”
His full decision is here.
In reality the proposal, called "Marsy's Law," pushes the criminal justice system pushes the legal process so far to the prosecution's side that violates the U.S. Constitution, interferes with law enforcement's ability to provide information that members of the public need to better protect their safety, and be costly to local taxpayers to implement. Milwaukee County District Attorney John Chisholm called Marsy's Law an "unfunded mandate."
The State Constitution already included a section on victims' rights:
|
The new Marsy's Law amendment specifies 16 new rights for victims while it eliminates reference to a "fair trial for the defendant."
Some of the victim's rights in Marsy's Law are laudable, some are bad ideas, and some are unrealistic. Some of the new rights are effective even before it is determined for sure there is a victim. Here is the vague, misleading ballot question that voters saw in April. Question 1: “ Additional rights of crime victims. Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?" That's it. Marsy's Law will bring a slew of changes to the criminal justice system that will mean more people going to prison because they can't adequately defend themselves. Legislators from both parties were fine with that. Below is our analysis of "Marsy's Law," completed before the measure went before voters. The analysis was developed by Madison attorney Dean Strang, a WJI Board member, and submitted to legislators on behalf of both Strang and WJI. You can go to any one of the proposals and responses by clicking on the relevant link below. Section 1: Introduction (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) (p) (3) Section 2 Section 3 Section 4 Section 5 Section 6 |
Also see:
South Florida Sun Sentinel: Marsy's Law becomes a monstrosity. Cincinnati.com: Marsy's Law blocks transparency. Pittsburgh Post-Gazette: Court declares Marsy's Law unconstitutional. Shepherd Express: Judge strikes down Marsy's Law and state should not appeal Wisconsin Justice Initiative: WJI wins challenge to Marsy's Law Wisconsin State Journal: Marsy's Law ballot question was improper, voters not told of full impact Wisconsin Justice Initiative: Marsy's Law an "unfunded mandate," Chisholm says Milwaukee Journal Sentinel: Judge says Marsy's Law was improperly adopted but leaves it in place for now USA Today: Marsy's Law used to protect cops who use force Louisville Courier-Journal: Marsy's Law shields cops in three states. Florida Political Review: Does Marsy's Law apply to on-duty cops who claim victimhood? ACLU: ‘Victims’ rights’ proposals like Marsy’s Law undermine due process Argus Leader: The fading mystique of Marsy's Law The Hill: The rights of victims shouldn't trump due process Matt Rothschild: Why I oppose Marsy's Law |
|
The proposed text
Section 1. Section 9m of article I of the constitution is renumbered section 9m. (2) (intro.) of article I and amended to read: [Article I] Section 9m (2) (intro.) In order to preserve and protect victims' rights to justice and due process throughout the criminal and juvenile justice process, victims shall be entitled to all of the following rights, which shall vest at the time of victimization and be protected by law in a manner no less vigorous than the protections afforded to the accused: WJI response: Initially...I note that Section 1 first asserts that victims have a right to “due process” in criminal prosecutions. Enacting this would open a whole panoply of claims to notice and to be heard, beyond even the expansive specific rights that (the amendment) would establish. This also would create a conflict, as a practical matter, with Section 5, which purports to forbid party status to a victim. People with due process rights in a given case are parties. |
Miles City Star: Montana Supreme Court strikes down Marsy's Law as unconstitu-
tional Fox 13: Law enforcement balances public's right to know with Marsy's Law Wisconsin Justice Initiative: These state reps led the effort to cripple the presumption of innocence in Wisconsin |
|
***
The proposed text (a) To be treated with dignity, respect, courtesy, sensitivity, and fairness. WJI response This is a good goal and workable as written. |
Tallahassee Democrat: Marsy's Law, First Amendment backers clash
Reason: Marsy's Law is a gift to bad cops Wisconsin Justice Initiative: Some questions for Attorney General Josh Kaul (that he never answered) |
|
***
The proposed text (b) To privacy. WJI response This is undefined and unworkable, at least as many victims would interpret the term “privacy.” As a matter of due process, confrontation, effective assistance of counsel, the names of victims and some of their personal identifying information will be included in police reports that are disclosed (and must be) to the defense. Victims will have to testify in court and respond to relevant questions that may intrude upon “privacy,” especially as a victim may wish to define it. Other witnesses for the state or the defense may disclose information that a victim might wish to deem private. This will create false hopes and expectations for victims, and is a promise that the state cannot keep. |
WINK: Citing Marsy's Law, police take days to notify neighbors of violent home invasion Cato Institute: New rights for crime victims? The trouble with "Marsy's Law" |
|
***
The proposed text (c) To proceedings free from unreasonable delay. WJI response Again, this broad and undefined aspirational goal does not explain the reality, which is that a victim never will be the person who decides what delay is “unreasonable.” A judge will be that person and, as a practical matter, must be. This creates false hopes and expectations. |
The American Conservative: Why victims' rights laws are a wolf in sheep's clothing
Minot Daily News: Implementation of Marsy's Law delays hearing |
|
***
The proposed text (d) To timely disposition of the case, free from unreasonable delay. WJI response Again, by whose measure? Not the victim’s. Further, I do not know what possible tangible remedy the state could offer for a disposition that is not “timely,” whether by the victim’s measure or even by a judge’s. Should the case be dismissed if it is not resolved in a timely way? The defendant be found guilty without a trial? I cannot imagine that victims would prefer the former, and neither the state nor federal constitution would tolerate the latter. |
Louisville Courier Journal: Kentucky Supreme Court strikes down Marsy's Law because the ballot question was so bad. (Wisconsin's is no better, and may be worse)
Louisville Courier Journal: Marsy's Law backers want the Kentucky Supreme Court to change its mind, reinstate law |
|
***
The proposed text (e) Upon request, to attend all proceedings involving the case. WJI response This would create a constitutional right that no one really intends, I suspect. As written, it purports to guarantee actual presence, in court, “at all proceedings.” That presumably means that District Attorney’s offices or police agencies must furnish taxi fare, bus fare, or airfare for victims who lack transportation to attend every court appearance, no matter how insubstantial. It presumably means that judges must schedule court appearances only when victims are not working or otherwise occupied, including at night and on weekends as necessary to accommodate victims’ schedules. This provision easily could be made workable and honest by promising timely notice of and an opportunity to attend, if the victim chooses and is able, court appearances. |
Orlando Sentinel: Marsy's law interpretations jeopardize public safety
Herald-Standard: Pennsylvanians should think twice before supporting Marsy's Law
Jurist: ACLU, League of Women Voters challenge Pennsylvania's Marsy's Law measure |
|
***
The proposed text (f) To reasonable protection from the accused throughout the criminal and juvenile justice process. WJI response This idea is workable and honest. It is a good idea. Judges, of course, will decide what is “reasonable.” |
ACLU of Wisconsin: Marsy's Law fails the victims it purports to protect
Wisconsin Examiner: Take a stand against the fatally flawed Marsy's Law |
|
***
The proposed text (g) Upon request, to reasonable and timely notification of proceedings. WJI response This is honest and altogether workable. It should supplant subparagraph (e), in my opinion. |
Tone Madison: Marsy's Law is creepy and cruel
The Ohio Star: City argues it is a "victim" under Marsy's Law, wants restitution for police response |
|
***
The proposed text (h) Upon request, to confer with the attorney for the government. WJI response This subparagraph is triggered only upon a victim’s request, which is wise. Yet it is not entirely workable, because it promises time with the prosecutor — not just with a victim/witness coordinator or other employee of the District Attorney’s office — upon request, and puts no limitation on how many such requests a victim may make. This state already has a shortage of assistant district attorneys, and their caseloads are unconscionably high in many counties. Realistically, they cannot interrupt other trials or their daily work every time a victim may want to confer. This would be unrealistically costly and in conflict with the other goals of timely disposition and elimination of unreasonable delay. It is a false promise and would create only false hopes. A fix would be fairly easy: for example, you might refer to the “prosecution,” not to an attorney for the government, and limit consultation to that which is “reasonable given the prosecution’s other legal obligations.” |
|
***
The proposed text (i) Upon request, to be heard in any proceeding during which a right of the victim is implicated, including release, plea, sentencing, disposition, parole, revocation, expungement, or pardon. WJI response This is both unworkable and counterproductive. On its face, it would invite victims to speak at plea hearings, expungement, and many other proceedings on which lay people have no expertise useful to a court. Indeed, as I read this, it would allow a victim to speak directly to the court at every proceeding, as I cannot think of any proceeding that would not “implicate[]” a “right of the victim” under this SJR. The likelihood of lengthier proceedings, and thus of unintended delay in that case and every other case on a court’s docket on a given day, is obvious. More subtle, and the counterproductive effect of which you should be aware, is this: to the extent that a victim takes a position contrary to the prosecutor’s position, the judge will hear dissension and chaos at the state’s table, while he or she typically hears unison and coherence from the defense table (because only the defense lawyer speaks there, typically). In any adversarial process, the likelihood of success on a given point rises for the party that presents a coherent, clear position; the likelihood of success falls for the party that has an incoherent, conflicting, or confusing position. Quite unintentionally but foreseeably, then, this provision may lead to the defense prevailing on points that it otherwise would lose, because of a fractured and fractious presentation by the state, through competing voices of prosecutor and victim. In that vein, too, bear in mind that a significant number of “victims,” as this SJR (Senate Joint Resolution) defines them, want charges against the defendant reduced or dismissed. This is an unfortunately common occurrence in domestic violence cases. Both judge and prosecutor would be obliged to hear the victim express that view in every court appearance—and the defense would be free at trial to use the victim’s statements in open court (indeed, any victim’s statements) to impeach the victim’s testimony at trial. |
***
The proposed text
(j) To have information pertaining to the economic, physical, and psychological effect upon the victim of the offense submitted to the authority with jurisdiction over the case and to have that information considered by that authority.
WJI response
This is a good, workable idea.
The proposed text
(j) To have information pertaining to the economic, physical, and psychological effect upon the victim of the offense submitted to the authority with jurisdiction over the case and to have that information considered by that authority.
WJI response
This is a good, workable idea.
***
The proposed text
(k) Upon request, to timely notice of any release or escape of the accused or death of the accused if the accused is in custody or on supervision at the time of death.
WJI response
This is a good, workable idea, sensibly limited to the victim’s request.
The proposed text
(k) Upon request, to timely notice of any release or escape of the accused or death of the accused if the accused is in custody or on supervision at the time of death.
WJI response
This is a good, workable idea, sensibly limited to the victim’s request.
***
The proposed text
(l) To refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.
WJI response
This is unconstitutional in part and thus unworkable and a false hope. Under the federal constitution, specifically the Sixth and Fourteenth Amendments, the accused in a state criminal case has a right to disclosure of exculpatory information, at a minimum. This provision would collide in part with those federal constitutional rights, and to that extent be unenforceable. It presents a measure of false hope or expectations to victims and is dishonest to that extent, too.
The proposed text
(l) To refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.
WJI response
This is unconstitutional in part and thus unworkable and a false hope. Under the federal constitution, specifically the Sixth and Fourteenth Amendments, the accused in a state criminal case has a right to disclosure of exculpatory information, at a minimum. This provision would collide in part with those federal constitutional rights, and to that extent be unenforceable. It presents a measure of false hope or expectations to victims and is dishonest to that extent, too.
***
The proposed text
(m) To full restitution from any person who has been ordered to pay restitution to the victim and to be provided with assistance collecting restitution.
WJI response
This creates an unintentionally broad constitutional right, and one that would be enormously expensive for taxpayers if it means what it says. If it does not mean what it says, then it misleads victims and creates false hopes and expectations. The fix would be easy. A constitutional right “to a restitution order as determined by law” and to “such remedies in collecting restitution as law provides” would be perfectly workable and a good idea. But as written, this gives the victim a claim against the state to “full restitution,” regardless whether the defendant is ordered to make that restitution, and regardless whether he can make that restitution as a practical financial matter. Only the taxpayer would be left to fulfill this constitutional guaranty of “full restitution” if, for whatever reason, the defendant does not or cannot make restitution in full.
The proposed text
(m) To full restitution from any person who has been ordered to pay restitution to the victim and to be provided with assistance collecting restitution.
WJI response
This creates an unintentionally broad constitutional right, and one that would be enormously expensive for taxpayers if it means what it says. If it does not mean what it says, then it misleads victims and creates false hopes and expectations. The fix would be easy. A constitutional right “to a restitution order as determined by law” and to “such remedies in collecting restitution as law provides” would be perfectly workable and a good idea. But as written, this gives the victim a claim against the state to “full restitution,” regardless whether the defendant is ordered to make that restitution, and regardless whether he can make that restitution as a practical financial matter. Only the taxpayer would be left to fulfill this constitutional guaranty of “full restitution” if, for whatever reason, the defendant does not or cannot make restitution in full.
***
The proposed text
(n) To compensation as provided by law.
WJI response
Again, this is a good, honest, workable idea.
The proposed text
(n) To compensation as provided by law.
WJI response
Again, this is a good, honest, workable idea.
***
The proposed text
(o) Upon request, to reasonable and timely information about the status of the investigation and the outcome of the case.
WJI response
This is in essence a good, honest, workable idea.
The proposed text
(o) Upon request, to reasonable and timely information about the status of the investigation and the outcome of the case.
WJI response
This is in essence a good, honest, workable idea.
***
The proposed text
(p) To timely notice about all rights under this section and all other rights, privileges, or protections of the victim provided by law, including how such rights, privileges, or protections are enforced.
WJI response
This is a perfectly good idea, and with a minor adjustment I think would be workable. The adjustment I suggest is that this right not take effect until charging, so that the burden of notification is on a District Attorney’s office, not on a police department. Police agencies operate 24 hours a day, but staffing is variable and depends upon the size of the department. Police officers also are less equipped to advise victims of a long list of constitutional rights than are prosecutors and their offices, which are under control of lawyers. Finally, in a meaningful number of cases, a prosecutor may determine that there was no crime, or at least no provable crime, and decline to issue charges. For all of these reasons, it will be more workable to put the onus of notice on a prosecutor’s office, at the time it issues charges or shortly after.
The proposed text
(p) To timely notice about all rights under this section and all other rights, privileges, or protections of the victim provided by law, including how such rights, privileges, or protections are enforced.
WJI response
This is a perfectly good idea, and with a minor adjustment I think would be workable. The adjustment I suggest is that this right not take effect until charging, so that the burden of notification is on a District Attorney’s office, not on a police department. Police agencies operate 24 hours a day, but staffing is variable and depends upon the size of the department. Police officers also are less equipped to advise victims of a long list of constitutional rights than are prosecutors and their offices, which are under control of lawyers. Finally, in a meaningful number of cases, a prosecutor may determine that there was no crime, or at least no provable crime, and decline to issue charges. For all of these reasons, it will be more workable to put the onus of notice on a prosecutor’s office, at the time it issues charges or shortly after.
***
The proposed text
(3) Except as provided under sub. (2) (n), all provisions of this section are self-executing. The legislature may prescribe further remedies for the violation of this section and further procedures for compliance with and enforcement of this section.
The proposed text
(3) Except as provided under sub. (2) (n), all provisions of this section are self-executing. The legislature may prescribe further remedies for the violation of this section and further procedures for compliance with and enforcement of this section.
***
The proposed text
Section 2. Section 9m (1) of article I of the constitution is created to read: ***
[Article I] Section 9m (1) (a) In this section, notwithstanding any statutory right, privilege, or protection, “victim” means any of the following:
1. A person against whom an act is committed that would constitute a crime if committed by a competent adult.
2. If the person under subd. 1. is deceased or is physically or emotionally unable to exercise his or her rights under this section, the person's spouse, parent or legal guardian, sibling, child, person who resided with the deceased at the time of death, or other lawful representative.
3. If the person under subd. 1. is a minor, the person's parent, legal guardian or custodian, or other lawful representative.
4. If the person under subd. 1. is adjudicated incompetent, the person's legal guardian or other lawful representative.
(b) “Victim” does not include the accused or a person who the court finds would not act in the best interests of a victim who is deceased, incompetent, a minor, or physically or emotionally unable to exercise his or her rights under this section.
The proposed text
Section 2. Section 9m (1) of article I of the constitution is created to read: ***
[Article I] Section 9m (1) (a) In this section, notwithstanding any statutory right, privilege, or protection, “victim” means any of the following:
1. A person against whom an act is committed that would constitute a crime if committed by a competent adult.
2. If the person under subd. 1. is deceased or is physically or emotionally unable to exercise his or her rights under this section, the person's spouse, parent or legal guardian, sibling, child, person who resided with the deceased at the time of death, or other lawful representative.
3. If the person under subd. 1. is a minor, the person's parent, legal guardian or custodian, or other lawful representative.
4. If the person under subd. 1. is adjudicated incompetent, the person's legal guardian or other lawful representative.
(b) “Victim” does not include the accused or a person who the court finds would not act in the best interests of a victim who is deceased, incompetent, a minor, or physically or emotionally unable to exercise his or her rights under this section.
The proposed text
Section 3. Section 9m (4) of article I of the constitution is created to read:
[Article I] Section 9m (4) (a) In addition to any other available enforcement of rights or remedy for a violation of this section or of other rights, privileges, or protections provided by law, the victim, the victim's attorney or other lawful representative, or the attorney for the government upon request of the victim may assert and seek in any circuit court or before any other authority of competent jurisdiction, enforcement of the rights in this section and any other right, privilege, or protection afforded to the victim by law. The court or other authority with jurisdiction over the case shall act promptly on such a request and afford a remedy for the violation of any right of the victim. The court or other authority with jurisdiction over the case shall clearly state on the record the reasons for any decision regarding the disposition of a victim's right and shall provide those reasons to the victim or the victim's attorney or other lawful representative.
(b) Victims may obtain review of all adverse decisions concerning their rights as victims by courts or other authorities with jurisdiction under par. (a) by filing petitions for supervisory writ in the court of appeals and supreme court.
[Article I] Section 9m (4) (a) In addition to any other available enforcement of rights or remedy for a violation of this section or of other rights, privileges, or protections provided by law, the victim, the victim's attorney or other lawful representative, or the attorney for the government upon request of the victim may assert and seek in any circuit court or before any other authority of competent jurisdiction, enforcement of the rights in this section and any other right, privilege, or protection afforded to the victim by law. The court or other authority with jurisdiction over the case shall act promptly on such a request and afford a remedy for the violation of any right of the victim. The court or other authority with jurisdiction over the case shall clearly state on the record the reasons for any decision regarding the disposition of a victim's right and shall provide those reasons to the victim or the victim's attorney or other lawful representative.
(b) Victims may obtain review of all adverse decisions concerning their rights as victims by courts or other authorities with jurisdiction under par. (a) by filing petitions for supervisory writ in the court of appeals and supreme court.
***
Section 4. Section 9m (5) of article I of the constitution is created to read:
[Article I] Section 9m (5) This section does not create any cause of action for damages against the state; any political subdivision of the state; any officer, employee, or agent of the state or a political subdivision of the state acting in his or her official capacity; or any officer, employee, or agent of the courts acting in his or her official capacity.
WJI response
I want to note the clear tension between Sections 3 and 4 of the (legislation).
The first, Section 3, promises that a court or other authority will “afford a remedy for the violation of any right of the victim.” But then Section 4 purports to withhold or remove the possibility of money damages on the theory that the new constitutional amendment “does not create any cause of action for damages.” There are at least three points of conflict or concern.
First, a victim may not need a new cause of action created by Section 4 to pursue a remedy under Section 3: his or her rights now have been elevated to a constitutional level, and their denial may well invoke pre-existing or long recognized causes of action for constitutional torts. So, in fact, Section 3 may make monetary damages available, if in fact the victim can point to a source of right to bring that monetary claim outside Section 4.
Second, if a victim really cannot recover damages from the state or its political subdivisions or state actors, then the Section 3 promise of a “remedy” for violations of many of these new rights really is illusory and empty; it is another false hope for victims or a trick played upon them. What possible remedy other than money would there be, after the fact, for lack of a timely disposition, for unreasonable delay, for denial of a right to be heard, for inability to collect full restitution from the defendant, and for a number of these other rights? None. A wealthy victim might seek an injunction in advance against violation of these rights, but even there, the later remedy for violation of that injunction may not be damages that go to the victim, if Section 4 is interpreted broadly. And a poor victim will have no practical remedy at all.
Third, Section 3(b) seems to create for victims an automatic right to review, not just in our intermediate court of appeals but in the state supreme court, too. I know of no other situation in which a definitional non-party has a right to appellate review. And I know of no party in any situation that has a right to review by the Wisconsin Supreme Court, which aside from this proposed constitutional amendment has a purely discretionary docket. This SJR would seem to make one non-party, a “victim” as defined here, the only person who could demand that the Wisconsin Supreme Court actually hear his or her claim.
The potential increase in the state supreme court’s workload would be incalculable. That court today gives full consideration to perhaps 80 cases a year, not including lawyer disciplinary matters. Because of the expansive definition of “victim” under this SJR, there would be one victim—at least—for many of the criminal cases filed in Wisconsin every year. For reference, according to CCAP, in calendar year 2016 Wisconsin courts opened 111,182 new criminal cases. If only .07% of those cases, well under 1 in 1,000, resulted in a victim seeking mandatory appellate review in the Wisconsin Supreme Court, it would double that court’s current caseload.
Section 4. Section 9m (5) of article I of the constitution is created to read:
[Article I] Section 9m (5) This section does not create any cause of action for damages against the state; any political subdivision of the state; any officer, employee, or agent of the state or a political subdivision of the state acting in his or her official capacity; or any officer, employee, or agent of the courts acting in his or her official capacity.
WJI response
I want to note the clear tension between Sections 3 and 4 of the (legislation).
The first, Section 3, promises that a court or other authority will “afford a remedy for the violation of any right of the victim.” But then Section 4 purports to withhold or remove the possibility of money damages on the theory that the new constitutional amendment “does not create any cause of action for damages.” There are at least three points of conflict or concern.
First, a victim may not need a new cause of action created by Section 4 to pursue a remedy under Section 3: his or her rights now have been elevated to a constitutional level, and their denial may well invoke pre-existing or long recognized causes of action for constitutional torts. So, in fact, Section 3 may make monetary damages available, if in fact the victim can point to a source of right to bring that monetary claim outside Section 4.
Second, if a victim really cannot recover damages from the state or its political subdivisions or state actors, then the Section 3 promise of a “remedy” for violations of many of these new rights really is illusory and empty; it is another false hope for victims or a trick played upon them. What possible remedy other than money would there be, after the fact, for lack of a timely disposition, for unreasonable delay, for denial of a right to be heard, for inability to collect full restitution from the defendant, and for a number of these other rights? None. A wealthy victim might seek an injunction in advance against violation of these rights, but even there, the later remedy for violation of that injunction may not be damages that go to the victim, if Section 4 is interpreted broadly. And a poor victim will have no practical remedy at all.
Third, Section 3(b) seems to create for victims an automatic right to review, not just in our intermediate court of appeals but in the state supreme court, too. I know of no other situation in which a definitional non-party has a right to appellate review. And I know of no party in any situation that has a right to review by the Wisconsin Supreme Court, which aside from this proposed constitutional amendment has a purely discretionary docket. This SJR would seem to make one non-party, a “victim” as defined here, the only person who could demand that the Wisconsin Supreme Court actually hear his or her claim.
The potential increase in the state supreme court’s workload would be incalculable. That court today gives full consideration to perhaps 80 cases a year, not including lawyer disciplinary matters. Because of the expansive definition of “victim” under this SJR, there would be one victim—at least—for many of the criminal cases filed in Wisconsin every year. For reference, according to CCAP, in calendar year 2016 Wisconsin courts opened 111,182 new criminal cases. If only .07% of those cases, well under 1 in 1,000, resulted in a victim seeking mandatory appellate review in the Wisconsin Supreme Court, it would double that court’s current caseload.
***
Section 5. Section 9m (6) of article I of the constitution is created to read:
[Article I] Section 9m (6) This section is not intended and may not be interpreted to supersede a defendant's federal constitutional rights or to afford party status in a proceeding to any victim.
Section 5. Section 9m (6) of article I of the constitution is created to read:
[Article I] Section 9m (6) This section is not intended and may not be interpreted to supersede a defendant's federal constitutional rights or to afford party status in a proceeding to any victim.
Section 6. Numbering of new provisions. If another constitutional amendment ratified by the people creates the number of any provision created in this joint resolution, the chief of the legislative reference bureau shall determine the sequencing and the numbering of the provisions whose numbers conflict.
WJI response
In sum, setting aside as I do the question whether a constitutional amendment is wise or necessary, I view SJR 2 as including a number of good, honest, and feasible ideas. I also view it as including several bad, overbroad, misleading or mistaken, and infeasible ideas. Creating false hopes or expectations for victims of crime, or providing “rights” that in truth have no adequate remedy, I think would be unconscionable treatment of victims, and unwise or even debasing public policy for the citizens of this state as a whole. The criminal justice system should be founded on honesty, integrity, and reliability in its goals and outcomes. Anything dishonest, misleading, or unreliable—even unworkable—debases that system, which already struggles with legitimacy. If you decide in the end that a constitutional amendment is wise and necessary, my hope is that you and your colleagues can implement the good without including the bad.
WJI response
In sum, setting aside as I do the question whether a constitutional amendment is wise or necessary, I view SJR 2 as including a number of good, honest, and feasible ideas. I also view it as including several bad, overbroad, misleading or mistaken, and infeasible ideas. Creating false hopes or expectations for victims of crime, or providing “rights” that in truth have no adequate remedy, I think would be unconscionable treatment of victims, and unwise or even debasing public policy for the citizens of this state as a whole. The criminal justice system should be founded on honesty, integrity, and reliability in its goals and outcomes. Anything dishonest, misleading, or unreliable—even unworkable—debases that system, which already struggles with legitimacy. If you decide in the end that a constitutional amendment is wise and necessary, my hope is that you and your colleagues can implement the good without including the bad.