The heavier stuff

Pennsylvania voters and Marsy’s Law

November 4, 2019

This is an off-year in the election cycle, which is to say last year we voted for some Congress members and state and local officials, and next year we vote for President, but this year, at least in Pennsylvania, we vote for… not as much. Please do go ahead and investigate your local elections (school boards matter!) and take a look here if you would like an assessment on the judges who are running for appeals court spots (please read the text with the recommendation), and check where your voting location is in case it changed (mine did!), and just do the civic duty thing. I absolutely understand the general revolution-type feelings of “voting isn’t gonna fix stuff to any significant degree” but to be honest, it frustrates me, because it makes me sound like I can’t care about more than one thing at a time. Which isn’t true! If you know me, you’ll know that I can care about literally every single thing at once and worry about all of them! What was this post about! I don’t remember! I’m just anxious!


You should vote because it does matter, and it is an important right, and honestly because it annoys boomers when young people show up at the polls because then they can’t say “these young people don’t care about our elections!” We do care.

If you’re not here with me in Pennsylvania, you can stop reading, I guess, since you aren’t voting on this. There is a decent chance this topic will come up or has come up in your state, though, and also I’d really like it if you stuck around to read this both because I like to think of myself as important and because it is genuinely important.

If you’re here with me in Pennsylvania, we have one referendum on the ballot that is state-wide: the rest of our votes are for candidates, but this one would alter the state constitution. It is called Marsy’s Law, and its aim is to add a set of victims’ rights to the state constitution. And I’m writing here in an effort to get you to vote against it. Yes, really, against it.

When I began drafting this post in early October (*Baymax voice* I am not fast) this question was on the ballot and not in the courts; that is no longer the case. The ACLU filed to block the question from the ballot altogether, arguing that changes to the Pennsylvania Constitution must be addressed individually, and that this proposed law would enact many at once under the umbrella of “victims’ rights.” The question is currently still on the ballot, but the PA Supreme Court has granted an injunction blocking the law’s enactment should it pass, so November 6th isn’t going to be a huge cataclysmic change regardless of the vote. However, this isn’t any kind of guarantee, and I’d really like to see the state’s voters say no without needing the injunction.

It’s tough to start this conversation mainly because the amendment is for “victims’ rights.” Victims are exactly what they sound like: those harmed by the committing of a crime, and in certain circumstances, the victims’ loved ones. The law is named after victim Marsy Nicholas, who was murdered in 1983 by an ex-boyfriend who stalked and eventually killed her. Her family was devastated, and a week after her death, they saw her killer in the grocery store; he had posted bail and been released pending trial. [I owe you all information on cash bail and why it’s horrific, too, but that is for another time.]

I cannot begin to understand the pain they felt and continue to feel, and my heart reaches out to them, as they are grieving and trying to do good in the world the best they can. Her brother, Dr. Henry T. Nicholas, is a millionaire many times over, and his money has funded the campaigns for this law in many different states. His concerns are valid, and understandable, and I have to believe his heart is in the right place.

Unfortunately, this law is inadequate on several issues of justice, and horribly overreaching in others. All the good intentions in the world don’t change the fact that this is a bad law, and I encourage you not to vote for it.

My first argument for not voting for it always starts here, as it is perhaps the most accessible, regardless of your political leanings: Pennsylvania already has a Victims’ Rights law in place. It has been on the books for decades, and Marsy’s Law in PA as drafted has a significant amount of overlap with the current law. The Crime Victims Act of 1998 already states that “all victims of crime are to be treated with dignity, respect, courtesy, and sensitivity.” It includes many rights, including the right to be accompanied to hearings by a family member or victim advocate; access to information about granting or denial of bail; to not be excluded from proceedings in court unless absolutely necessary; the right to make a statement at sentencing; the right to be notified (when the victim requests it) of any filed appeals and their disposition; the right to participate in parole determinations; and to receive compensation for costs associated with the crime (frequently called “restitution”). That link goes to the law, and there are a whole lot of other provisions, and that kind of stuff is good and important.

“Wait, if we have a law already, what are they doing with this campaign?” Well, this law is drafted so that a “yes” vote would actually amend the State Constitution rather than update a law. Those campaigning for Marsy’s Law state that it is vital to add these provisions to the state constitution, as a simple majority vote could overturn victims’ rights laws. They say it must be added to the constitution so that no one can just vote and overturn it. I get it, but this point is spurious in the extreme: no lawmaker, however heartless, is going to vote to remove a victims’ rights bill. The optics would be terrible, and there’s no benefit to it monetarily: this isn’t a group of lobbyists pushing anyone. That law is staying put. It’s been on the books over 20 years and has not been substantially changed in that time.

“So why argue for a new law at all? Why not just work with this one?” That’s a very good question, and it hasn’t yet been adequately answered. If you need a short answer from me? Money. Money would help a lot. Like many other services for the public good, those who are most vulnerable frequently do not receive them. These kinds of things within the framework of victims’ rights can look like assistance to women testifying against their abusers, both emotional and financial. Victims’ rights can be steamrollered by something as simple as “the victim and witness did not have enough money to get to court on the day.” On my good days, I can understand Henry Nicholas’ desire to protect people like his sister from danger and terror by introducing this bill. On my bad days, I want to sarcastically ask him why hiring Kelsey Grammer to promote this bill on television was a better use of money than donating it to a Legal Aid office or women’s shelter. Laws are important, they are vital, they are the spine of many causes in justice, but they are not the roots; that’s money and effort.

Here’s where it gets a little more difficult as it’s no longer just about procedure.

“Who cares; these people are criminals, and the victims are *victims*, why wouldn’t you want to protect them against these scumbags? Why should criminals get more rights then the people they hurt?” Hoo boy. Okay. So. The first thing is that a lot of this process happens before a conviction: defendants are innocent until proven guilty, and that has to be a component of constructing victims’ rights. Our system is far from perfect because people have prejudices and they lie and there are no witnesses and I could go on for a week. But “innocent until proven guilty” is as good a standard as we can get; if we’re going to change a person’s life forever, we really should be sure that they did the bad thing we’re locking them up for.

And that’s why the phrasing of this law is so fundamentally flawed.

The amendment includes the wording that the rights of victims be protected “in a manner no less vigorous than the rights afforded to the accused,” and that should give you pause. The rights given to the accused, which you are at least familiar with from whatever crime procedural you watch, are important and numerous and guaranteed, and above all, they’re unique. From the point of an arrest forward, a defendant has the potential to be denied freedom, and that denial comes from the state. The government, the country. The most powerful entity nearly everyone will ever come into contact with. The state has the ability to lock you in a small area for the rest of your life. It can take money, it can take time, it can even take your actual existence. Victims are not placed in the same position in this process, and they never will be.

“But these animals are murderers, they do awful stuff, isn’t that a denial of life or whatever you just said?” Yes. It is, it absolutely is. Laws do what they can, but there are still those who will deny the rights of others. But we aren’t animals, and this isn’t the Punisher. That’s what civilization is about; regulating the bad parts of life with a recognition that the biggest powers could destroy everyone and everything if they wanted and it would be legal.

“Okay, but what rights are we talking about here? It’s not a bad thing to notify victims of the court proceedings, why would you oppose this kind of stuff?” A very good question, and there’s a few reasons! Yes, they should be notified of proceedings, and should absolutely be notified of the release of a defendant on bail if a bodily injury crime is involved. And I’m all in favor of many of those, as applied by the 1998 Act; again, it’s not that the laws aren’t there, it’s that they aren’t being used or addressed. I’m very much not in favor of two “rights” in this bill that are not so clear, and they have the potential to be disastrous.

The first is “the right to refuse discovery requests made by the accused.” On its face, this might actually seem just fine. For example, “rape shield” laws exist in order to prevent a defendant from bringing up the victim’s past sexual conduct to be used in a current accusation of assault, and there are certainly other times when particular information about a victim is completely irrelevant to the matter at hand. I, personally, am thinking of every example of an extrajudicial killing of a black person by the police. However, this provision of Marsy’s Law is not even based on relevancy; rather, it addresses the victim’s nebulous right to be treated “with fairness, respect, and dignity.” And if this is a right that is to be enforced “in a manner no less vigorous than the rights of the accused,” what is to stop a victim or their family from turning over crucial evidence or being deposed? There can certainly be objections to requests for documents or information or any other discovery, but you can object to them under the same standards currently in place. Say that they are irrelevant, or that their probative value is likely to be more prejudicial than helpful in the case, and allow an advocate or lawyer or family member to attend depositions. The answer cannot be that “victims’ rights” lets you reject a discovery request as being against “respect and dignity.” And I’m not saying that this doesn’t matter! I’m saying that it could not be more vague, and vagueness in laws gets people hurt or locked up for things they didn’t do.

The second issue that truly gives me pause is “the right to proceedings free from delay.” In my most charitable reading of this provision, this section is redundant, as the right to a speedy trial is already a guaranteed right for the accused, and the victim is involved in the same case. In my most bitter and skeptical reading, this provision asks for final determinations of guilt and to prevent appeals from reaching the bench. I can absolutely understand the frustration in appeals; my civil clients with relatively low-stakes matters are furious when the opposing party chooses to appeal, and I don’t blame them. You think the case is done and you can move forward, and then the other party appeals and you have to do this all over again. And these are very small civil matters; victims will have to relive some very awful things that happened to them, and I truly feel for them.

But that’s where I have to stop, because the rights of the accused still outrank any “victim’s rights.” Appeals are filed for a number of reasons, and many of them are important and vital. Again, we are a civilization, and if a sentenced defendant brings up the possibility that justice was not properly served, we have to listen. There’s no good way to do this without possibly hurting a victim, but it has to be done. If a conviction rests on wrong evidence, or flawed procedure, or ineffective counsel, the case has to be reopened. No one can sit in jail or live with a criminal record because it could hurt a victim to readdress the case. The number of innocent people released in recent years should give you pause; I don’t want yet another roadblock put up to correctly served justice.

Friends, this bill is at best vague and at worst dangerous, and the victims’ resources already exist. Let’s fund them. Let’s publicize them. Let’s drive people to their PSA hearings. Let’s eliminate cash bail. Let’s educate on internalized prejudices. Let’s alleviate poverty. Let’s not throw money and support behind a posturing law because it sounds good. We may currently be abandoning those in need, but they aren’t the people on the ads. Please vote against this constitutional amendment. Please vote “NO.”

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