Marsy's Law: The rights of victims shouldn't trump due process

Marsy's Law: The rights of victims shouldn't trump due process
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There’s a proposal on the ballots in six states next week that would give the victims of crime more rights in prosecutions.

Marsy’s Law seeks to make the rights of an accused defendant and a crime victim equal, despite the fact that the rights of the two parties are totally different and sometimes even diametrically opposed.

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The rights given to an accused person are constitutionally guaranteed because — even as he stands before a court facing charges — he’s innocent. And his status as an innocent person doesn’t change until certain procedural and evidentiary hurdles are cleared.

However, Marsy’s Law doesn’t treat a defendant like he’s legally innocent. Instead, it gives a victim the right to withhold potentially exculpatory evidence by refusing to be interviewed or deposed, which essentially denies the accused what he needs for a fair trial.

There’s only one justification for such a violation of due process: everyone must assume that the accused is guilty. That’s the opposite of what our system of justice is based upon.

Not only does Marsy’s Law endanger innocence, it might even backfire and protect the guilty. A prosecutor is constitutionally required to disclose any exculpatory evidence under the law established in the Supreme Court case Brady v. Maryland. If a prosecutor is prevented from making those disclosures, any conviction secured against a defendant runs a high risk of being overturned. That means a victim who is exercising her rights under Marsy’s Law may pave the way for a successful appeal for someone who is guilty.

Marsy’s Law hasn’t had have a great record of success in the states it’s already been implemented in. Of the six state constitutions it’s been amended to so far  — California, Illinois, Montana, North Dakota, South Dakota and Ohio — two are already experiencing problems.

Montana’s Supreme Court tossed its amendment for the way the ballot initiative packaged so many aspects of the amendment into one vote; voters had no way to reject one provision of Marsy’s Law without voting against it in its entirety. During this year’s legislative session, the state of South Dakota opened discussion of repealing or changing Marsy’s Law because the privacy protections for victims has prevented local sheriffs from sharing information about unsolved cases with the public, thus reducing the amount of help that tipsters can provide.

This isn’t to say that victims’ rights aren’t essential to justice; they are, and most Americans believe that. But that’s what Marsy’s Law takes advantage of.

It bundles beneficial victims' rights — like the rights of a victim to know the status of a defendant’s case and whether or not he’s been released from custody — with the potentially harmful rights, like allowing complainants to dodge discovery requests. In doing so, voters must support all of the ballot measures even if they don’t agree with them entirely. They think it’s the only protection for victim’s rights available. 

That’s the reason for the legal challenge to the ballot in Kentucky and why the Montana Supreme Court invalidated its version of Marsy’s Law. Courts held that voters shouldn’t have to accept a trade-off between the defendants’ and victims’ rights, and I agree. 

Luckily, Marsy’s Law isn’t the only way to protect the rights of all parties when a crime occurs. Thirty states have amended their constitutions with rights for crime victims without making the false equivalence of Marsy’s Law. The State of Connecticut has protected victims’ rights since 1996, when 79 percent of voters approved an amendment to the state constitution that didn’t threaten any defendants’ rights. New Hampshire’s Victim’s Bill of Rights has specifically codified the fact that no victim’s rights can outweigh or interfere with the rights of the accused.  

Next week, six states will vote on Marsy’s Law: Kentucky, Nevada, Georgia, Oklahoma, Florida and North Carolina. Voters should not be fooled into making a bad decision, even with the best of intentions.

Chandra Bozelko’s criminal justice column “The Outlaw” is nationally syndicated columnist through Creators Syndicate.  She is a 2018 Pretrial Innovation Leader with the Pretrial Justice Initiative.