On November 5th, 2019, Pennsylvania voters will cast their ballot for a proposed amendment that would create constitutional protections for crime victims. The description of the amendment, as it will appear on the ballot, seems reasonable at first. However, there are many problems with this measure (apart from the procedural irregularities that serve as the impetus for a current lawsuit — brought, in part, by ACLU Pennsylvania).
Constitutional Rights & Marsy’s Law
The rights enshrined in the Pennsylvania Constitution — like its federal counterpart — protect individuals against government overreach.
Thus, a resident is protected against a police search done in violation of the Fourth Amendment and an inmate is protected against prison abuses in violation of the Eighth Amendment. A protestor is protected against state regulations that infringe on the First Amendment.
The Constitution is not designed to protect one group of individuals’ rights at the expense of another group. Constitutional liberties protect us from our government, not from each other.
But Marsy’s Law purports to protect victims not as to expansive government power but, rather, as to individuals accused of a crime.
When the state determines to prosecute an individual, it has at its disposal great weight and resources. The framers of our Constitution sought to balance this inequity by guaranteeing the individual important constitutional protections.
Marsy’s Law infringes on these rights.
Our own Jacob Wyland was interviewed by CBS Pittsburgh about these constitutional protections and what impact Marsy’s Law could have on them.
The Constitution protects an individual’s right to present a defense. Thus, if your loved one has been charged with a crime, she has the right to gather evidence in support of her innocence: phone records, text messages, or medical records for example.
Marsy’s Law would provide the victim with a constitutional right to block “discovery” – to obtain documents and materials that are relevant to the issues involved. Or perhaps her lawyer requests to delay the case, for more time to locate key witnesses, or obtain lab results, or for an expert to review the matter.
Marsy’s Law would give a victim the constitutional right to block efforts to obtain a continuance (an extension of time). It is not difficult to imagine that if an individual charged with a crime is prevented from gathering evidence and is rushed to trial, innocent people will be convicted and those responsible will go free.
This is antithetic to what the framers of our Constitution intended.
Judgment Before Trial
And who is a “victim?” Marsy’s Law, by labeling an individual a “victim” at the beginning of a case — not only before trial, but before much investigation — and correspondingly granting that “victim” a panoply of constitutional rights, is making an untenable legal determination.
In other words, by simply stating “I am a victim,” that individual would be guaranteed a wide array of constitutional rights that directly conflict with the constitutional rights of the individual charged by the government.
Those arrested are arraigned within a short time to ensure that a neutral judicial officer determines that there is probable cause to support the charges.
But what initial process is used under Marsy’s Law to ascertain that someone is properly a “victim?”
If you assume that a person is a victim at the beginning of a criminal case, then it must also be assumed that the person accused victimized that person. In other words, that the defendant is guilty.
This would vitiate one of the most important rights guaranteed to us all: the presumption of innocence.
Many of the rights and protections provided for in Marsy’s law are appropriate: to be notified of proceedings in which they are a victim, to consider their safety in bail hearings, opportunity to participate in public proceedings, reasonable protection, restitution, return of property and to be informed of these rights.
However, the appropriate mechanism to do so is by statute – not by constitutional amendment. Our Constitution provides the basic framework for our government and fundamental rights that protect us all from governmental overreach. Not everything worth governing is, or should be, provided for in the Constitution.
What Marsy’s Law Will Do to the Constitution
Marsy’s Law provides for fifteen changes to eight sections of our Constitution. If the amendment passes, fixing the problems described would require further constitutional amendment. If the appropriate protections were instead provided by statute, necessary future remedies would be more easily accomplished.
Other states, such as South Dakota – have passed similar ballot measures that have been mired in litigation because of the problems with the law as written.
It is simply a poorly designed effort to assist victims.
The core goals of Marsy’s Law could be accomplished in better ways, that are consistent with our constitutional values, and would not to lead to protracted legal challenges. Passing a constitutional amendment that will significantly alter the precarious balance of rights and obligations now accorded to individuals prosecuted by the government is not the right way forward.