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

3 thoughts on “Marsy’s Law in Wisconsin ”

  1. This law protects all “accusers” and severely limits the accused (and innocent by law) access information required to defend against false allegations. Until there is an equal punishment for false allegations, there is no deterrent, and every advantage to succeed in getting away with a victim claim against someone. Until the court decides whether or not there is even a victim or victimizer, and further which is the victim, there are 2 innocent people, both of whom should have equal access to information to prove their case. I am all for protecting victims, but let the court (by equal standards) figure out who the real victim is first.

    1. I would like to see how the law is written for Wisconsin. I see some good and bad in the way it’s written up for CA. I have to agree with Joel Portmann, I see it being miss used by people claiming a case against an innocent person, just because they are upset about some thing that has nothing to with the charges brought against them.

  2. I am speaking as a homicide victim—a voice which needs to be heard, and is decidedly not.

    Yes, a Google search will show you the many unfortunately wrongly accused—what it will not show you are the many more victims of crimes with CLEAR overwhelming evidence of the perpetrators’ guilt.

    This is not because we don’t exist, because we do, in overwhelming numbers—and there are probably many more of us than there are wrongfully accused—but because we have been denied a voice.

    We are strongly encouraged to not speak to the media about our experiences because too much inflammatory coverage can give grounds for the defense to move the trial outside the community. And when the justice process is finally done—a process which often (and especially in my case) takes years, and is both dehumanizing and intensely traumatizing—we are too exhausted. And at that point, the media has little interest for our struggles anyways, now that the sensationalized portion has been resolved.

    This suppression of voice isolates victims of violent crime even more, denying us access to the support of our community. It does so in ways that are not explicitly stated but strongly implied—this is a matter of de facto vs de jure. Of course the state couldn’t outright forbid me from throwing a fundraiser to cover my court costs—travel, rental cars—numbering in the tens of thousands—and expenses that I will never recoup—but it could hold me hostage by the defense’s ability to ask to move the trial, likely resulting in further delays.

    In the case of my trial, it has been scheduled and cancelled 6 times in less than 4 years, and this is a common experience for homicide victims nationwide, not just in Wisconsin.

    You may choose to focus on the negative impact these kind of delays have on the accused, but what is less known—because it is not widely spoken of—is the intensely traumatizing and dehumanizing effects this has on victims. This is not just the perpetrator’s trial, this is the victim’s trial as well (and we have most certainly done nothing wrong.) Yet the right to a fair and speedy trial does not apply to us.

    Try imagining living in a purgatory where you are not able to commit to a career because you are told every few months that a trial will happen—which in my case involves traveling 2,500 miles to attend, and a minimum of 3 weeks of my life, not including the recovery time afterwards for what will likely be the second most traumatizing event in my life. Try imagining the fear and emotional turmoil making such a trip entails—not including the financial hardship and work arrangements—to get there and be told days before it is cancelled because of some silly nonsensical request of the accused. (Many of those requests may be valid—but many are also silly, and you would probably agree were you to study these cases in depth.) Try to imagine the level of trauma it is to be a victim of violent crime in the first place, and what is to be stuck in a wound the justice system will not allow to heal.

    You cannot. You absolutely cannot until it happens to you or in your close proximity. And likely, you have never heard from people like me.

    Yes, I have spoken before the court. As in depth and as eloquently as I could. Ultimately my voice made no impact on the court system bound by procedure. To court professionals, this is an exercise in protocol. To victims, this is our entire lives.

    Try to consider what I have said and apply that to the new protocol Marsy’s law enacts on appeal and parole. Crime victims deserve a rest. To be constantly pulled into appeal hearing after appeal hearing, after years of fighting for sentencing, is unconscionable and further dehumanization. Let us have a few years where we may resume our life. After all, we didn’t kill, rape, or maim anyone.

    I have been blessed with a kind and responsive Victims Witness office and engaged DA. These kindnesses do help make the process easier. But despite that, it is obvious in the eyes of the overall justice system that we do not matter. Some features of Marsy’s Law are so vague to be unenforceable. The courts are to “consider” my needs as a victim while deciding on adjournment. But there is no way to measure or quantify what this “consideration of my needs” looks like and that it is being done. It could mean the judge stared off into the distance and wondered if I was having a good day. Ultimately, it is collection of good intentions and well wishes.

    I will not remark on the ability to deny discovery because I know nothing about that. But I will reiterate that the suppression of victims’ voices and needs is to suppress a vulnerable and ill-protected class of people.

    It is well documented that women are the overwhelming victims of rape. And that 90% of violent perpetrators are men. And while women may be only a third of homicide victims, most of these crimes are the result of DV. Women are often the victims of process predators, not resource predators. And it is also commonly known that obtaining RO before the crime happens is very difficult, that LE is unsympathetic or unable to pursue complaints of stalking. That there is a backlog of untested rape kits. Especially when the victim is a woman of color. It is only once the woman is dead or assaulted that LE takes action.

    And then survivors are subjected to the further dehumanization that is the justice system—and our voices effectively silenced.

    At this point, this comment is late. Marsy’s Law has been passed in WI. I do not believe it is perfect. But I do believe an overhaul of the justice system is sorely needed—if unlikely. In considering what kind of changes need to be made, voices like my own need a seat at the table. So this is why I leave my words here.

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