Another Side to Marsy's Law
By Albert B. Kelly
This past Election Day, Pennsylvania voters approved a
ballot question that would amend that state’s constitution with a package of
measures collectively known as Marsy’s Law but because of legal challenges in
court, the votes will not be certified until the court rules on those
challenges.
If you’re not familiar with Marsy’s Law, it’s a victim’s
bill of rights intended to be an amendment to state constitutions and variations
of it exist in a dozen states. The package of measures, which first got
national attention when they became part of California’s constitution in 2008,
took its inspiration from the efforts of Henry Nichols, whose sister Marsy, was
murdered by an ex-boyfriend in 1983.
To me, and to most reasonable people, the idea that we
should have certain protections and provisions locked in place for victims of
crime is a “no-brainer”. Most states, including New Jersey and Pennsylvania,
already have rights on the books for crime victims. Our sympathies naturally rest
with those who’ve been victims of crime either because we or a loved one have
been victimized or we’ve placed ourselves in the victim’s shoes. But is
amending a constitution is serious and if there are unintended consequences,
they’re not easily remedied.
In terms of the amendment’s specifics, they include the
right to be treated with respect for the safety, dignity, and privacy of the
victim, the right to avoid delays in proceedings, to be provided notice on
public proceedings, to be heard at sentencing and parole hearings, and the
right to receive notice of any pretrial disposition of the case. Other provisions
include the right to reasonable notice of any release or escape of the accused,
the prompt return of property when no longer needed as evidence, reasonable
protection from the accused and those acting on the behalf of the accused, and timely
restitution from the person or entity convicted- so far so good.
Where questions arise is with the right to confer with
prosecutors on what charges are being filed or whether charges should be
increased, to be heard regarding bail or release for the accused after arrest
but before trial and conviction; the right to refuse to provide pretrial
testimony or other evidence requested on behalf of the accused, and the right
to ask a judge for a new trial if the victim believes his or her views weren’t
heard.
As strongly as I feel about victim’s rights, we have a
responsibility to balance them against the rights of the accused. Even as I say
this, I suspect that just mentioning the rights of the accused in the same breath
with the victim’s rights will anger some and that’s understandable, but remember
were talking now only about the accused, not the tried and convicted or those who’ve
pled guilty.
The distinction matters because according to the Innocence
Project, working backwards from the 281 known DNA exonerations in the US since
the late 1980s, there are some 20,000 individuals (1% of the inmate population)
who are falsely convicted and sitting in a cell. The National Registry of
Exonerations (http://www.law.umich.edu/special/exoneration/Pages/about.aspx)
shows that overall there have been 2,509 exonerations that have occurred since
1989 which translates into slightly more than 22,000 lost years. In New Jersey,
it’s 39 exonerations translating into 376 lost years.
My point is that just because someone has been accused or
charged with a crime doesn’t mean their automatically guilty. This distinction is
often missed and while we pay lip service to the idea that a person is innocent
unless proven guilty, few of us myself included, easily give the person doing
the perp walk such a presumption. Throw in the baggage of race and ethnicity
and the presumption of innocence is all but impossible for some.
Because of what’s at stake, specifically someone’s life,
liberty, or property and the possibility of so many unintended consequences,
great care must be taken in amending a state’s constitution especially when it
involves measures that could potentially undermine the presumption of innocence.
Beyond that, to the greatest degree possible, my hope is
that prosecutors will one day routinely incorporate the “blind charging”
approach being tried by San Francisco District Attorney George Gascon in a
pilot project meant to remove implicit bias when deciding whether to charge
someone or what charges to bring- something that would become all but
impossible to do in the face of such competing interests.