We all think it is important to protect victims when a crime has occurred. But that does not mean that we should pass any and all legislation that purports to represent victims. Here are the 10 reasons I’m voting against Marsy’s Law:
- Marsy’s law is based upon the assertion that “victims [need] meaningful and enforceable constitutional rights equal to the rights of the accused.” This assertion mischaracterizes how the American justice system operates. The victim isn’t the one that is having their rights taken away during a legal proceeding. Victims’ rights serve a completely different purpose aimed at ensuring recovery for individuals, not protection against state power.
- If you didn’t like the false accusations against Justice Kavanaugh, imagine each one of his false accusers/victims having an attorney at a trial and new “rights” created just because they claim to be victims.
- Innocent until proven guilty is a bedrock of our justice system. Marsy’s Law undermines that and assumes the accused is guilty upon accusation. This reminds me of the Democrats’ attempts to impeach President Trump when they demanded he prove his innocence.
- Conservatives in states that have passed Marsy’s Law, like Ohio, have said it has actually weakened protections for victims and the wording (same as WI) was not well thought out.
- Other states show us that not only is Marsy’s Law is expensive, but its poor wording makes it almost impossible to follow to the letter of the law, causing it to have the opposite effect of its intended purpose. In South Dakota, Sheriffs have stopped asking for the public’s help to solve crimes that were in progress because the Sheriffs did not want to inadvertently run afoul of Marsy’s law in revealing a victim’s location and taxpayer money has paid for the beefing up of staff to comply with the law.
- Wisconsin already has a robust system to protect victims. The proponents have failed to make the case that they are insufficient in many cases.
- The referendum seems to be in conflict with the 6th Amendment right to speedy trial and right to confront the accuser. Thomas Jefferson saw the 6th Amendment as the “best of all safeguards for the person, the property, and the fame of every individual.” If every “victim” has to be tracked down (see #8) in pre-trial proceedings, there is a potential to make the process take a very long time.
- The provision poorly and vaguely defines a victim in such a way that insurance companies and corporations could be construed as victims to property damage and would be entitled to counsel at pretrial hearings.
- The Founding Fathers intended to guarantee rights to those accused of crimes in order to limit the state’s power when the state seeks to deprive the accused of life, liberty, and property. This referendum gives more state power to deprive individual rights.
- The Referendum is too broad. As Sen. Duey Stroebel put it, “the limited ways this proposal could improve the status quo are outweighed by the possibilities for unforeseen problems. I am concerned about putting technical provisions that may need changes over time into the constitution.” Amending the constitution is done rarely and should be taken very seriously. Poorly written requirements that cause many problems should not become part of the Wisconsin Constitution. In one state, it caused so much confusion that they came back and amended it two years after the fact.
Matt Batzel is a Member of the Wisconsin Bar.