Reality Check: Marsy’s Law would expand protections for crime victims, opponents worry about defendant’s rights

A constitutional amendment on the ballot in Wisconsin’s spring election would expand protections for crime victims in the court system, but opponents argue it also upends a defendant’s presumption of innocence.

The amendment is called “Marsy’s Law,” named for Marsalee (Marsy) Nicholas, a University of California-Santa Barbara student, who was stalked and killed by her ex-boyfriend in 1983, according to the Marsy’s Law for Wisconsin website. The website also says Nicholas’ parents were confronted by their daughter’s accused killer in public, though they did not even know he had been released from prison.

The constitutional amendment would change that, ensuring victims or their families are notified of the release of an accused perpetrator, among nearly 20 other changes to current rights for victims laid out in the Wisconsin constitution.

An ad for the amendment is running on News 3 Now, in which actor Kelsey Grammer shares his own family’s struggles with the courts.

“When my father’s killer was released, I found out through the National Enquirer,” Grammer said in the ad. “Seemed like a cruel joke.”

The actual language of the amendment on the ballot does not explain in detail the changes it would make to Wisconsin law:

“Question 1. Additional rights of crime victims. Shall section 9m of Article I of the Constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?”

One of the most notable changes would add a definition for “victim,” including not only the alleged victim of a crime, but also the alleged victim’s parents or spouse if they are unable to exercise their own rights. Other rights Marsy’s Law would add include the right to have certain information or records protected, the right to be notified and present at all proceedings, and the right to be notified of an agreement, like a plea deal, before the deal is reached.

The amendment had bipartisan support when it passed the state Legislature in 2019, adding it to the ballot on April 7. There are also numerous groups who support the amendment, including the Dane County Chiefs of Police Association, the Rape Crisis Center, the Wisconsin Coalition Against Sexual Assault and Wisconsin Victim Witness Professionals.

Opponents, such as the ACLU, take issue with some of the content of the amendment and also the wording as it appears on ballots.

The Wisconsin Justice Initiative filed a lawsuit last year to block the amendment because it doesn’t fully explain the changes. A judge denied the suit.

One of the plaintiffs in the lawsuit said the amendment makes the assumption there is a victim to a crime, when he said the court itself is often trying to determine that in its process. He said that impedes the presumption of innocence granted to all defendants in a courtroom.

Specific language in the law says it “is not intended and may not be interpreted to supersede a defendant’s federal constitutional rights.”

Marsy’s Law for All, the organization behind the movement, has pushed for passage in states around the country.

The Montana Supreme Court overturned passage there because justices felt voters should have to decide on all these rights separately.

“The decision to void Marsy’s Law was not based on the merits of the changes proposed by the initiative, justices reiterated,” according to a report by the Bozeman Daily Chronicle.

See a breakdown of how Marsy’s Law would change current victim protections below. In the left column, italicized text would be modified by the amendment. In the right column, bolded text indicates measures not currently included in the Wisconsin constitution.

CURRENT LAW ( Section 9m of Article I ) MARSY’S LAW CHANGES
-a right to be treated with fairness, dignity, and respect for privacy;

 

– To be treated with dignity, respect, courtesy, sensitivity, and fairness.

 

To privacy

 

– To have information or records protected that could be used to locate or harass the victim or that could disclose confidential or privileged information of the victim.

 

-a right to a timely disposition of criminal cases;

 

To proceedings free from unreasonable delay.

– To timely disposition of the case free from unreasonable delay.

-a right to attend court proceedings unless court findings declare the victim’s presence would preclude a fair trial;

 

To be present at all times at all proceedings involving the case

 

 

a right to be protected from the alleged criminal;

 

To reasonable protection from the accused throughout the criminal justice process

 

-a right to be notified of court proceedings;

 

To reasonable and timely notification of proceedings

 

-a right to confer with the prosecutor of the case;

 

– To confer with the attorney for the government.
-a right to speak at dispositions;

 

To be informed by and provide input to the attorney for the government about any case disposition agreement, including a plea agreement, deferred prosecution agreement, or diversion agreement, before a final decision is made concerning such an agreement.

 

To be heard in any proceeding during which a right of the victim is implicated, including release, plea, sentencing, disposition, parole, revocation, expungement, or pardon.

 

To have information submitted to the authority with jurisdiction over the case pertaining to the economic, physical, and psychological effect of the crime or juvenile offense upon the victim and to have that information considered by that authority.

 

To refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.

 

 

-a right to restitution and compensation;

 

To full restitution; and to be provided with assistance collecting restitution.

 

To have any moneys or property collected from a person who has been ordered to make restitution to the victim be applied first to restitution of the victim before being applied to any amounts owed by that person to the government.

 

To compensation; as provided by law

 

-and a right to be informed of the outcome of the proceedings and the release of the alleged criminal.

 

– To timely information about the outcome of the case

 

– To timely notice of any release or escape of the accused or death of the accused if the accused is in custody or on supervision at the time of death.

 

No such provisions exist in this section To timely notice about all rights under this section and all other rights, privileges, or protections of the victim provided by law, including how such rights, privileges, or protections are enforced.

 

DEFINES VICTIM: “victim” of crime, or if person is dead or physically/emotionally unable to exercise rights, spouse, parent or legal guardian, sibling, child, person who resided with the deceased at the time of death, or other lawful representative. If minor, the person’s parent, legal guardian or custodian, or other lawful representative. If incompetent, the person’s legal guardian or other lawful representative.

 

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