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'Marsy's Law': The Push to Constitutionalize Crime Victims' Rights

May 8, 2019 in Economics

By Walter Olson

Walter Olson

A determined national campaign has resulted in the enactment in
California, Ohio, Illinois, and several other states of state
constitutional amendments promoted as a bill of rights for crime
victims, often known as “Marsy’s Law” after a
murder victim whose brother has backed the campaign. In addition to
spreading the idea to other states — the exact provisions
vary from state to state — proponents seek to take the idea
nationwide through a constitutional amendment.

There are very good
reasons why the Framers included in the Constitution and Bill of
Rights many protections for criminal defendants, but relatively few
for victims. We forget that wisdom at our peril.

Unfortunately, most versions of Marsy’s Law so far impinge
on legitimate rights of criminal defendants, constitutionalize
issues better left to resolution by judges or lawmakers, and create
ongoing tension with the presumption of innocence. Matthew Harwood explores some of these questions in
an excellent new analysis in Reason
, and others have
filled in more examples in recent online discussions. For example:
In the name of protecting their privacy, and especially shielding
them from fear of possible intimidation, the measures restrict
dissemination of personal information about crime victims. While
the impulse involved is understandable, and there have long been
legitimate ways of accommodating it, it is also essential that
accused persons have access to evidence they need to prepare the
case in their defense. Some Marsy’s Law provisions give victims and
their attorneys a basis to resist defendant-side requests for
pre-trial depositions and medical records relevant to the incident
and injury, even when potentially exculpatory.

One generally accepted way to harmonize the legitimate interests
on each side is for judges to review requests for potentially
sensitive personal information in chambers, and decide what
information is needed for the defense and whether a protective
order should attach that would prohibit dissemination beyond the
lawyers themselves. But the laws can override that discretion,
notes Jerome Buting on Twitter.

Meanwhile, the laws can deprive the public of information about
crime that is legitimately important to them, as when, for example,
a murder occurs in their neighborhood. Twitter user Timothy Burke offers a Tampa instance.

Some Marsy’s Law provisions purport to give victims a
right to have the process over and done within a certain time limit
such as two or five years. Trouble is, not every exculpation or
appeal is finished that fast. Note that the Bill of Rights’
Sixth Amendment asymmetrically assigns the accused, but not the
public in whose name he is accused, the right to a speedy
trial.

Underlying several of these problems is a point made …read more

Source: OP-EDS

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