‘Victims’ Rights’ Proposals Like Marsy’s Law Undermine Due Process

Since 2008, a national campaign entitled “Marsy’s Law” has sought to enshrine in state constitutions a specific and lengthy set of victims’ rights. Funded by California billionaire Henry Nicholas, the campaign’s goal is to lock its formula into every state constitution and then to amend the U.S. Constitution to include similar victims’ rights. Though well intended, the Marsy’s Law formula is poorly drafted and is a threat to existing constitutional rights.

Marsy’s Law has hit resistance in states in which legislatures must approve a constitutional amendment before it goes to the voters. The New Hampshire House of Representatives recently voted down Marsy’s Law by a vote of 284 to 51. The Idaho Legislature voted down similar legislation for the second time this year. However, Marsy’s Law will be on the ballot in a handful of states wherein only signatures are needed to put an issue before the voters in November. The potential impact of Marsy’s Law, both at the state and national level, warrants national attention and alarm.  

Marsy’s Law is premised on the notion that victims should have “equal rights” to defendants. This opening salvo is a seductive appeal to one’s sense of fairness. However, the notion that victims’ rights can be equated to the rights of the accused is a fallacy. It ignores the very different purposes these two sets of rights serve.

The U.S. Constitution and all 50 state constitutions guarantee defendants’ rights because they are rights against the state, not because they are valued more by society than victims’ rights. Defendants’ rights only apply when the state is attempting to deprive the accused – not the victim – of life, liberty, or property. They serve as essential checks against government abuse, preventing the government from arresting and imprisoning anyone, for any reason, at any time.

Victims’ rights are not rights against the state. Instead, they are rights against another individual. The Marsy’s Law formula includes the rights to restitution, to reasonable protection, and to refuse depositions and discovery requests, all of which are enforced against the defendant. Such rights do nothing to check the power of the government. In fact, many of the provisions in Marsy’s Law could actually strengthen the state’s hand against a defendant, undermining a bedrock principle of our legal system — the presumption of innocence.

This risk further underscores one of the overarching concerns about Marsy’s Law: It pits victims’ rights against defendants’ rights. Creating such a conflict means that defendants’ rights may lose in certain circumstances. This result accepts that defendants’ rights against the state will be weakened or unenforced in some cases, potentially at a significant cost to constitutional due process. In other words, the chances that an innocent person could be convicted of a crime they did not commit could potentially increase. The proponents of Marsy’s Law may not intend for this outcome, but nothing in their formula prevents it.

There are ways of guaranteeing victim’s rights without making constitutional mistakes. For instance, in New Hampshire, our comprehensive victims’ rights statute preempts conflict between rights by stating that victims’ rights shall be enforced “to the extent . . . they are not inconsistent with the constitutional or statutory rights of the accused.” This language recognizes that victims’ rights may come into conflict with defendants’ rights and that our justice system works only if defendants’ rights against the state are upheld.

Marsy’s Law has no comparable language.

Thirty-five states include some version of victims’ rights in their constitutions, but only five states—California, Illinois, Ohio, North Dakota, and South Dakota — currently do so using the problematic Marsy’s Law formula. Many states have enshrined language that is unique to their state and that works with their statutes. By contrast, Marsy’s Law is in no way tailored to any one state’s existing laws. Put simply, the Marsy’s Law formula amounts to a constitutional experiment for any state that adopts it.

This experimental “model law” is so expansive and ambiguous, it is impossible to know how courts would interpret it or what its impact would be in any one state. For instance, Marsy’s Law includes a constitutional right to privacy for victims, yet it is impossible to know what that right would encompass in practice.

Would it prevent the release of names or crime reports? Would it reduce the amount of information that press outlets are allowed to provide to the public regarding crimes? Could it give a victim and their attorney control over the limits of a victim’s testimony at trial?

Too much of the Marsy’s Law narrative is abstract, obscuring what the implications would be for our legal system. The multi-million dollar campaign that comes with Marsy’s Law focuses on the intent of the law. But, well-meaning intent does not cure bad language. The concern over ambiguous language and unintended consequences are particularly acute because, unlike a statute, if problems arise with a constitutional experiment, legislators’ hands are effectively tied. To change even a few words requires another constitutional amendment.

For example, South Dakota passed Marsy’s Law as a constitutional amendment in 2016. Now state legislators are going through the cumbersome process of passing another constitutional amendment in order to fix problems with the original language.

To oppose Marsy’s Law is not to oppose victims’ rights. Rather, it is to oppose the highly problematic formula that is Marsy’s Law. There are many ways that states could better support crime victims: additional resources for services, more education about existing victims’ rights, and improvements to statutory rights. It is false advertising to suggest that the only or best option is through a one-size-fits-all constitutional amendment.

We should set the highest of bars for constitutional amendments. Once language is added to a state constitution, it is etched in stone. This is all the more so when talking about the U.S. Constitution. Constitutions are not science labs, and states should be leery of experimenting with Marsy’s Law.

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Mary Kirkpatrick

This is the similar to the problem with the Title IX cases on campuses currently. In the rush to support a safe environment on campus, there has been a rush to ignore the presumption of innocence and require fairness and due process to the accused student. When the accuser lies, or puffs, nothing is done to acknowledge the falsity of the statements, and no sanctions are rendered to the accuser for violating policy or handbook. Schools can be fair to all students without being seen as weak on sexual assault or sexual misconduct. These cases, right now, are some of the worst injustices in the United States, as they sacrifice tuition dollars, reputation, honor, trauma, and label a young person with criminal behavior, without due process, in the name of supporting victims' rights.

Anonymous

Mary, excellent comparison and very shocking indeed. Leftist special interests groups are absolutely attempting to establish a quasi-court, authoritarian, and absolute parallel legal system in the U.S. with measures such as the Title IX directive and Marsy's Law. Voters need to remain vigilant and well informed to rebuff these assaults on our Constitution and accepted Western jurisprudence.

D.P.

i would love to talk to someone about appealing a cro filed in placer county ,Ca. I have gone to four hearings 3 judges to ask to either vacate or modify to peaceful contact. Denied x4. Each time,i presented , researched, factual account, measures i have taken, my desires . I have been told by a victim advocate "sometimes victims dont know whats in their best interest" so they have removed my free will, my intelligence for making an informed decision, my plea to reconcile with my partner, the have taken my autonomy, removed a income provider from my home despite four intelligent, well presented arguements to vacate or at the very least modify.

Anonymous

This is typical of domestic violence convictions where children are present. You might be willing to take a chance with your own wellbeing and let a convicted violent offender back into your life but your child/ren don't have a voice in the matter. An advocate will step in to be that voice.

Anonymous

To Anonymous responder: Well then whose children are they exactly? Do child/ren belong to their parents or to the State? Is State ownership and benevolent tutelage of children really a precedent we want to continue to perpetuate in the United States?

M.N.

Well the way the advertising is looking this is probably going to pass in florida. No one is speaking up about the potential downsides of this. Before I took the time to look into it I thought it was a no brainer, I mean who would vote no to protecting crime victims?

DWommy

Totally agree. Until I clicked ok this, it sounded like an easy option. Now I can see how the accused can get railroaded. And I also think about how many times something like this happens - half of the facts are shared and ppl get in an uproar about misinformation....a lot.

Anonymous

Same way in KY

AKR

Thank you for posting this. I will be voting against the Question in Nevada to institute this law.

Anonymouse

Defendants like Diane Downs and Mary Beth Tinning would never be imprisoned.

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