The Case Against Marsy’s Law
Marsy’s Law, if you haven’t heard already, has been the subject of some controversy since it landed in the Capitol last summer. The law, which will appear on the Pennsylvania ballot this November 5, is part of a national movement to give victims of crime greater protections and real, enforceable rights in court proceedings. The Marsy’s movement has enjoyed some success so far, passing robust victims’ rights legislation in 10 states since 2008.
Pennsylvania is widely expected to follow suit. As in most other states with Marsy’s on the books, the law as proposed would amend the State Constitution to add a Victims’ Bill of Rights. As all proposed amendments are required to do, the bill has passed both the House and Senate for two consecutive sessions, unanimous every time except for one. (It split by a hair in the House’s second consideration, passing 190–8.) The Governor and Lieutenant Governor have both signaled their approval, as have whole spades of everyday Pennsylvanians. By all lights the referendum will pass, probably by a very wide margin, and Pennsylvania will see a new era of justice for victims.
But opponents of Marsy’s Law say that it is bad news up and down, for reasons that may be difficult for voters to detect from the language of the ballot question. Groups like the ACLU and the League of Women Voters are arguing that the law would compromise the constitutional rights of the accused in a number of potentially disastrous ways. Take the Sixth Amendment, for example, which provides the right to a speedy and public trial. If victims can motion to prolong a trial or begin a new one when they feel that their rights have not been upheld, that could mean a less than fair and speedy trial for defendants. In every criminal trial where a victims is involved, then, there would always be two, distinct, competing ideas of what a fair trial looks like. There’s almost zero chance that the prosecution and the defense would agree on how to define fairness, and it would be left to the court to decide whose due process gets priority.
Another pitfall of Marsy’s Law is the guaranteed right of victims to “refuse an interview, deposition, or other discovery request made by the accused.” Discovery, for those who aren’t familiar, is the process through which the defense is allowed to access information about what the prosecution intends to present at trial. (It’s designed to level the playing field, essentially.) There are a number of exceptions to the rule of discovery, types of evidence that can’t be admitted — generally speaking, though, the tendency is towards maximum disclosure. Granting crime victims the unique power to influence what is and isn’t admissible in court, though, could seriously impact trial outcomes going forward.
Even if victims aren’t given carte blanche to nix potential evidence — judges can still use the overriding power of the subpoena when necessary to admit evidence — under Marsy’s Law, judges may interpret a victim’s right to refuse information as a directive not to demand it, and not bother about the subpoena. And if any of that withheld evidence is exculpatory? We could be looking at an increase in wrongful convictions in a legal system that is already rife with them.
What opponents of Marsy’s Law want you to know, in the end, is that constitutional rights for the accused exist because when someone is accused of a crime, the government is doing everything in its power to deprive them of their life and liberty. The full weight of the well moneyed state is down upon them, they want you to know. And prosecutors already have an almost singular power in our legal system. And the defendant will probably be coerced into a plea deal, anyway, as something like 90% or more of trials end in a guilty plea — yes, even when the defendant may be innocent. What opponents say is this: we ought to preserve what little chance there is for the accused to fight a fair fight.
And besides, Pennsylvania has victims’ rights on the books already. The Crime Victims Act, which provides statutory rights for crime victims, was passed in 1998. If you compared the CVA side by side with Marsy’s, you’d see that they overlap pretty significantly. Why reinvent the wheel, then?
Because this wheel is busted, according to proponents of the law. Existing statute gives rights to victims in principle, yes, but not in reality. The 1998 Act provides for the rights of victims — including, notably, the right to be notified of significant actions in the trial and the right to have prior comment in parole decisions — to be “honored and protected” in a manner “no less vigorous than the protections afforded criminal defendants.” That sounds all fine and good, but victim advocates say that it’s hardly ever the case that victims are allowed their due standing: hardly anyone in the courts bothers to enforces victims’ rights, and victims have no adequate legal recourse when they try to stand up for themselves. Even in Pennsylvania, where we have not only an existing Bill of Rights for victims, but also a dedicated state Office of the Victim Advocate, the statutory rights of crime victims lose out every day to the constitutional rights of the accused. And that, they say, is why we need Marsy’s.
Still, there is the matter of the ballot question itself. Take a look at the text that will appear in voting booths next week:
Shall the Pennsylvania Constitution be amended to grant certain rights to crime victims, including to be treated with fairness, respect, and dignity; considering their safety in bail proceedings; timely notice and opportunity to take part in public proceedings; reasonable protection from the accused; restitution and return of property; proceedings free from delay; and to be informed of these rights, so they can enforce them?
You’d probably answer yes at first blush. Anyone would! The moral content of the question is basically unquestionable. Who would ever want to suggest that they do not believe in fairness, respect, and dignity? Some say that that’s exactly the issue: the question is designed to be illegible, to get the vote from under-informed voters who might not fully know what it is they’re agreeing to. The question is very long, first of all. It’s strangely constructed and tricky to parse. Its several distinct clauses, separated by semicolons, aren’t parallel — in other words, they don’t share the same basic form — which makes it harder for readers to process. The question also starts with broad principles like dignity and safety, so that your average voter might think they get the point (and agree with the point) before they’ve considered the whole picture.
The problem may be a matter of more than voter confusion. In a lawsuit filed just over two weeks ago, the Pennsylvania ACLU argues that Marsy’s Law is unconstitutional because it combines too many changes to too many sections of the Constitution into one question (a maneuver commonly known as logrolling). The ACLU is requesting a preliminary injunction on the referendum results until the question of its constitutionality can be settled by the Commonwealth Court. If it’s too late for the question to be scrubbed from the ballot, then the Secretary of the Commonwealth should hold off on certifying the results.
It might not really matter whether Marsy’s fails this time around. The support for victims’ rights in Pennsylvania is more than well attested: it is a bold, unambiguous, and bipartisan movement. As, in some sense, it ought to be. We ought to extend protections as widely as we can; protection, love, and care to as many as we can. It’s just — there has got to be a better way than this.
Did you know that 5300 people in Pennsylvania are serving Life Without Parole sentences? Did you know that, per capita, Pennsylvania sends more people to die behind bars than any other state and any other country? Did you know that you can die the slow death of incarceration for driving the getaway car in someone else’s crime? Did you know they still did that here, Life Without Parole for the driver? Did you know that you can’t drive down prison populations with nonviolent drug reforms alone, that you have to rethink violent crime, too? Did you know that you can close two prisons in this state without a single layoff? And that 75% of corrections spending is on staff? Did you know how near impossible it is to get parole in this state, and did you hear that the Department of Corrections, the Board of Parole, the District Attorneys Association, and our lawmakers all want to make it harder? Did you know that they’re granting parole to fewer and fewer people even though fewer people on parole are getting rearrested than ever? Did you know that? And did you know that, in the face of all of this, there is a movement by the people to end Life Without Parole in the state, and that it is led by those who have lost a loved to gun violence and a loved one to incarceration, both? And did you know that they have hope? And did you know what they said: that from loss there is a way forward. For all.
