By Elizabeth Randol
On November 5, Pennsylvania voters will decide whether or not to enact Marsy’s Law, a constitutional amendment that its supporters say would give crime victims “co-equal” rights to those of the accused. Over the past 40 years, the federal government and every state have enacted laws to help victims, including Pennsylvania’s Crime Victims Act. In 2008, California became the first state to adopt Marsy’s Law as a constitutional amendment. Since then, several other states have followed suit. But because most states have only recently adopted Marsy’s Law, we are just now beginning to see the full consequences of its vague and problematic language. While Marsy’s Law is designed to appeal to a sense of fairness, there are a number of significant problems with the proposed amendment.
First, by promising “co-equal” rights between victim and the accused, the law dangerously ignores the different purposes each right serves. Our constitution vigorously protects the accused, not because the law values defendants more than victims, but because it values protecting individuals from excessive government power. Defendants’ rights only apply when the state is attempting to deprive the accused – not the victim – of life, liberty, or property. These rights are designed to be robust in order to effectively check the vast power of the government. Victims’ rights, however, are intended to ensure recovery for individuals, not to limit or protect against state power.
Second, Marsy’s Law undermines due process and upends presumption of innocence by giving victims a say in the process before a crime has been established or a person convicted. If someone is presumed to be the victim of a crime before a jury returns a verdict, then the accused is presumed guilty, not innocent. And by granting victims new rights, such as the right to a speedy trial and right to refuse discovery requests, Marsy’s Law also undermines due process protections necessary to defend oneself.
Third, Marsy’s Law is unnecessary and duplicative of existing Pennsylvania law. Pennsylvania's Crime Victims Act already provides many of the rights granted under Marsy’s Law – and more. It isn’t the law that fails victims; it’s the entities responsible for upholding the law that fail to inform and notify victims of their rights. But Marsy’s Law does nothing to fix this problem – it offers no funding to improve services to victims. And by explicitly denying victims the right to sue, Marsy’s Law fails to provide an enforcement mechanism to hold state and county entities accountable.
Fourth, constitutions, whether state or federal, are not science labs and are not a place to experiment with new laws with unknown consequences. Marsy’s Law is rife with ambiguous language that has left states unprepared for the unforeseen challenges of implementing its provisions. State and local officials have complained about skyrocketing costs and administrative quagmires in the wake of its adoption. And South Dakota’s Marsy’s Law created so many problems that legislators had to re-amend their amendment just two years after it first passed. Changing the constitution demands careful consideration and amendments are no place for guesswork.
Finally, Marsy’s Law would be in violation of the Pennsylvania Constitution. Pennsylvania’s pending Marsy’s Law ballot question is unconstitutional because it combines many changes into a single amendment – what the Pennsylvania Supreme Court has called “logrolling.” The rules for amending the Pennsylvania Constitution require that changes affecting different sections of the constitution must be voted on as separate amendments. Marsy's Law creates 15 constitutional rights for crime victims that impact three articles and eight different sections of the state constitution. By bundling many amendments into a single “yes” or “no” proposal, the November 5th ballot question denies voters their right to choose which provisions of Marsy’s Law, if any, to adopt. Voters will instead be forced to make an all-or-nothing choice on the proposed constitutional changes.
The ACLU of Pennsylvania does not oppose victims’ rights. Rather, we oppose the highly problematic language proposed by Marsy’s Law. Pennsylvania legislators could easily amend current law to provide better support for crime victims, such as additional resources for comprehensive services, more education about existing victims’ rights, funding to expand access to services, and enforcement of the victims’ rights we already have. It is false advertising to suggest that the only or best option is through a one-size-fits-all constitutional amendment.
We can do better. Vote “No” on the Marsy’s Law question on November 5.
Elizabeth Randol is the legislative director at ACLU of Pennsylvania.