A victims’ rights law is one of those proposals that sounds good — what kind of person could be opposed to victims of crimes having rights? — but one that, executed poorly, could do as much harm as good.
A proposed state constitutional amendment, dubbed “Marsy’s Law,” was introduced last month by a collection of powerful Republicans, the Wisconsin State Journal reported April 30. If passed, the state constitution would guarantee crime victims 17 rights, including equal standing in court as defendants, keeping information private that could be used to locate or contact the victim, allowing them to be present at all court proceedings and to confer with prosecutors and provide input on pleas, deferred prosecutions and other agreements.
The idea that victims have equal standing in court throughout a criminal case is troubling for one significant reason: Until you have a conviction, you don’t have a victim. You have an accuser.
We’re not attempting to diminish the suffering of crime victims, and we want those who have harmed others brought to justice. But justice, by definition, involves a fair trial — as guaranteed by the Sixth Amendment of the U.S. Constitution — and a finding of guilt. Until those have taken place, you don’t have someone who can be legally accorded the status of victim.
Speaking of the Sixth Amendment: It also guarantees defendants the right to confront witnesses against them and to “have compulsory process for obtaining witnesses.” The proposed Wisconsin amendment would give those accorded victim status the right to refuse to be interviewed by the accused. We don’t see how that aspect of the proposed Wisconsin amendment is anything other than unconstitutional.
There are other aspects of the Wisconsin proposal with which we take no issue. For example: Victims also would be notified immediately if a defendant is released from jail or prison, escapes or dies while in custody and would be able to speak at any court proceeding at which defendants may be released, sentenced, paroled or pardoned. Those seem reasonable because they are post-conviction rights.
Crime victims already have a host of rights, many of which are described in the state’s first-in-the-nation victims’ rights law; this amendment would enshrine some of those in the state’s charter.
“We put some (rights) into the constitution but not all the ones that I think are necessary to make an even — or closer to even — playing field,” said Sen. Van Wanggaard, R-Racine, co-author of the proposal. “We want to make sure there’s no question that victims have a right to be heard and that victims have a right to be protected.”
We believe Sen. Wanggaard, a former Racine police officer, is sincere in his desire to ensure that victims have standing in Wisconsin’s courthouses. But, as stated above, you cannot have a person with legal standing as the victim of a crime until you have a convicted defendant.
We are absolutely in favor of victims having post-conviction rights. But the bill before the Wisconsin Legislature threatens a defendant’s right under the Sixth Amendment to a fair trial. Nothing in Wisconsin’s Constitution can interfere with the U.S. Constitution.
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