The Wisconsin Legislature has approved an amendment to the State Constitution that, its supporters incorrectly say, would "level the playing field" for victims of crime.
In reality the proposal, called "Marsy's Law," would push the criminal justice system so far to the prosecution's side that it would violate the U.S. Constitution, interfere 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.
The Legislature has approved the proposed amendment twice and it next will go to referendum, where voters will have the final say.
The State Constitution already includes a section on victims' rights:
In reality the proposal, called "Marsy's Law," would push the criminal justice system so far to the prosecution's side that it would violate the U.S. Constitution, interfere 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.
The Legislature has approved the proposed amendment twice and it next will go to referendum, where voters will have the final say.
The State Constitution already includes a section on victims' rights:
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The proposed Marsy's Law specifies 16 new rights for victims while it eliminates reference to a "fair trial for the defendant."
Some of the proposed rights in Marcy's Law are laudable, some are bad ideas, and some are unrealistic. The changes could affect a case even before it is determined that there is a victim. If the proposed amendment makes it to referendum, voters will be limited to voting "yes" or "no" on the entire package. They will get only one vote, when they should get at least 16 – one for each of the proposed new "rights." Below is our analysis of the proposed "Marsy's Law." It was developed by Madison attorney Dean Strang, a WJI Board member, and submitted to legislators on behalf of both Strang and WJI. We'll post the information a bit at a time in short, readable bits. You can go to any one of the proposals and responses by clicking on the relevant link below. (a) (b) (c) (d) (e) |
Also see:
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. |
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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: |
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. |
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(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. |
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(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. |
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(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. |
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(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.
(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.