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The victim’s rights ballot question in April didn’t tell the truth about the actual impact of the state constitutional amendment known as Marsy’s Law.
That message from the judge was clear.
“Wisconsin voters deserve no less than to be asked the right question(s),” Dane County Circuit Judge Frank D. Remington wrote. “Wisconsin voters cannot and should not be misled or deceived if the outcome of the ballot question is to have full force and effect of law.”
Remington last week struck down the amendment, but stayed his ruling pending appeal, if there is one.
The ballot question had two major problems. It asked whether the state constitution should require that the “rights of crime victims be protected with equal force” as those afforded to defendants in criminal cases, when the actual amendment would allow victims’ rights to be protected with more force than those of defendants.
Fair Trials?
The amendment also would strip defendants of some protections and would remove the only reference to fair trial rights in the entire constitution. The ballot should have included a separate question about the rights the amendment takes away, the judge said.
Attorney General Josh Kaul, whose office should have caught these issues long before the ballots were ever sent out for printing, now has to decide whether to appeal Remington’s decision. If Kaul does appeal, he will be in the unenviable position of arguing either that the amendment does not mean what it says or that ballot questions can misinform voters.
Kaul should not appeal. The Legislature embraced the idea of Marsy’s Law, but not paying for its new requirements. The amendment already is costing local government more money—Milwaukee County District Attorney John Chisholm has called it an unfunded mandate—and those costs will continue to rise.
Here is an idea: why doesn’t the Legislature just fund an adequate number of victim / witness advocates around the state? That would be a real improvement in the way things work now. Advocating for that would be a far better use of Kaul’s time than appealing this decision.
What’s Wrong with the Law?
But if the State Legislature wants to fix its shipwreck of a Marsy’s Law, it should start over with the amendment process. And while that is going on, we need a thorough examination of what Marsy’s Law would actually mean and do in practice.
The amendment would allow, in some instances, victims’ roommates—not spouses or significant others, but just some folks splitting the rent‚—to assume the legal status of “victim,” even if they have absolutely nothing to do with the crime. It would also allow people to declare themselves “victims” and invoke their rights even if law enforcement thinks they are lying and there is little evidence that any crime occurred.
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Ill-Defined
The amendment would provide these self-proclaimed victims with an undefined “right to privacy.” In some places, police have not notified residents of crimes in the area out of fear of identifying earlier victims. That ill-defined right also is sure to make some people—especially government employees like public school teachers who are directly governed by Marsy’s Law—reluctant to report suspected crimes. That domestic violence a young child reports during recess? Shhhhh.
Marsy’s Law legislation in other states has allowed police to shield the identities of officers accused of excessive force and wrongful shootings. The involved officers simply proclaim their victimhood and invoke their right to privacy. That’s a scenario very likely to happen here under Wisconsin’s version of Marsy’s Law.
Other considerations...Are victims entitled to counsel, as defendants are? If victims’ rights truly are protected with “equal force,” the logical answer is “yes.” Is the state obligated to provide lawyers to victims who can’t afford them? Again, the amendment’s language would indicate “yes.” If a victim and a prosecutor disagree, who wins? (Divergent interests are not that unusual in domestic violence cases, where the victim does not always want the alleged abuser prosecuted.)
These are real questions that deserve a lot of thought and consideration, far more than was given to the Marsy’s Law question that was put on the April ballot.
Let’s not make the same mistake again. There are better options than Marsy’s Law, but if Wisconsin does a Marsy’s Law, let’s do it right. And let’s start by starting over.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative, a plaintiff in the lawsuit challenging the Marsy’s Law constitutional amendment.
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