Marsy’s Law in Wisconsin 

Posted on Categories Constitutional Law, Criminal Law & Process, Public, Student Contributor

Have you ever heard something that, almost immediately after hearing it, bounced your thoughts from the possible benefits to the seriously questionable outcomes that might follow, and left you swinging back and forth between the two?  This is exactly what happened to me just recently after hearing about Marsy’s Law coming to Wisconsin.  As it stands, I can get behind the general idea of the law, but I do have some doubts—problems, even—with the way the law is being pushed forward. 

“Marsy’s Law” is the idea that crime victims, and the families of crime victims (who become victims by association) should have equal rights to those who are accused of victimizing the family.  According to the web site for Marsy’s Law for All, the law is named for Marsalee (Marsy) Nicholas, a “beautiful, vibrant University of California Santa Barbara student, who was stalked and killed by her ex-boyfriend in 1983.” (Quote from Marsy’s Law for All) One week after Marsy’s  murder, some of her family members entered a grocery store and were confronted by the man who was accused of murdering Marsy.  Marsy’s alleged murderer had been let out on bail and the family had not known about it. 

Marsy’s Law for All argues that the United States Constitution and every state constitution have a detailed set of rights for people who are accused of crimes, but the United States Constitution and 15 state constitutions do not have a list of rights for victims of crime.  As I am writing this, the web site for Marsy’s Law argues that the United States Constitution has 20 individual rights for those accused of a crime, but none for the victims of crime.  States, on the other hand, have been making some progress.  California, Illinois, North Dakota, South Dakota, Montana, and Ohio have passed Marsy’s Law, with efforts to adopt the law currently underway in Kentucky, Maine, North Carolina, Georgia, Nevada, Idaho, Oklahoma, and here in Wisconsin.   

This is not a bad thing.  There is not a doubt in my mind that any and every citizen of the United States should be given the same rights as any other.  And I agree with the organization’s statement that a rapist or a murderer should not be given more rights than the victim (or the victim’s family).  Most of the “rights” being argued for are not too different from laws already in place.  In fact, from the sounds of it, most of the states that have enacted Marsy’s Law have simply written it into current law on the books and went about their day.  Specifically, for Wisconsin, the Legislature has passed a motion to amend Article I, Section 9(m) of the Wisconsin Constitution, which deals with the victims of crimes.  The law proposes: notifying victims (or family of victims) when the offender is free; giving victims timely notification in big developments in the criminal case; giving a victims the ability to provide their thoughts on plea arrangements or before sentencing; and allowing victims the ability to be heard at any stage during the trial or proceeding regarding the freeing of the offender.  Really, most of the rights Marsy’s Law for All is looking for are straightforward and I could get behind.  Looking at the incident that started this, it is not hard to imagine the anger, frustration, or even fear, of being confronted by the person who is believed to be the murderer of a family member.  But Marsy’s Law for All goes further, and that is where my problems with this proposal begin. 

Marsy’s Law for All wants to amend the United States Constitution to include rights for victims.  I was a bit skeptical immediately upon hearing this.  My initial thoughts ran to a slippery slope of forcing states to abide by federal law for different charges (for example, second degree manslaughter in one state may be manslaughter in another) that would no doubt have to be hammered out in the court system before being somewhat figured out.  Then, I heard what Marsy’s Law for All wanted to add to the Constitution: a constitutional right to restitution for criminal matters.  Restitution for crimes, to me, sounds much more like a civil matter than a federal criminal matter.  On top of this, and specifically of potential impact in Wisconsin, victims can force their input to be considered by the jurisdictional authority (which would no doubt bog down an already overloaded system), and, most worrying to me, the victim would be able “[t]o refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.” This is a serious reach.  I can understand wanting to help victims of crimes, but I also understand not stomping on the rights of an accused individual.  Not even stomping. Negating.  This, to me, screams unconstitutional.  A quick Google search can show you the a large number of wrongly convicted people have spent time in prison, and that is with our past/current system.  Imagine an accused individual being denied discovery, being convicted, then having to sit and wait for an appeal proceeding that will take even longer because the victim and/or their family can decide the convicted person hasn’t sat long enough.  In California, where Marsy’s Law began and was implemented, those who were handed a life sentence and were denied parole, had to wait, on average, 15 more years until their next parole hearing, as compared to just two years prior to the law’s implementation.  While Wisconsin is not California, and the report states that some other factors should be considered, it is worth noting a dramatic increase in the time spent waiting for a procedural hearing. 

As I have stated before, there are some parts of Marsy’s Law that I could get behind, but there are some parts of the law that need to be taken out.  The ACLU has warned against Marsy’s Law and has jumped on board lawsuits that have been filed against it, including one in Montana that had the law struck down as unconstitutional.  The ACLU argues the same points as I do: good intentions, bad implementation. For a different view, and one from a 32-year veteran of the courts, see here.  I am curious as to the thoughts of others on this subject, especially those of professors or practicing attorneys, and I hope to be seeing some discussion of this before this proposal is voted on in Wisconsin

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