The Rights We Give Up under “Marsy’s Law”

Walter Olson

I’ve written before about the set of state constitutional amendments known as “Marsy’s Law,” promoted as a bill of rights for crime victims. While the details vary from state to state, common provisions found in the package can deprive persons accused of crimes of information that is of legitimate use in mounting their defense, seal off access to information about crime that the public has valid reasons to want to know, and even in some states work to suppress the identities of police who shoot civilians, so long as the officers allege that they were themselves victimized as part of the episode. In an unsettling paradox, the laws bestow valuable rights on persons it designates as crime victims before any legal process determines whether a crime has in fact been committed against them and if so by whom.

Critics have gone to court to challenge Marsy’s Law enactments, with at best spotty success. Wisconsin’s high court has now upheld the law against one such challenge. It ruled that the package did not violate the state’s “single‐​subject” rule for constitutional amendments presented as ballot measures; high courts in Pennsylvania and Montana had struck down their state’s enactments on that ground, but application of single‐​subject rules is anything but predictable. And it ruled that the language presented to voters was not improperly misleading, though it could easily have left voters with the impression that the existing rights of criminal defendants would be left untouched (they weren’t).

I wrote a piece for the Brennan Center this spring about the Wisconsin challenge and another in Florida. An excerpt:

Marsy’s Law proponents regularly argue that the laws don’t weaken the rights of criminal defendants. But there’s little doubt that the Wisconsin package does exactly that. For example, it “limits discovery available to defendants by allowing victims [t]o refuse an interview, deposition, or other discovery request,” argues a brief from the ACLU of Wisconsin. A brief from public defenders says it’s “common for documents to be more heavily redacted or not disclosed in the name of ‘Marsy’s Law’” and that “the accused’s diminished discovery rights have been narrowed further with the amendment.”

In addition, the ACLU argues, a provision granting victims the right to attend all proceedings does so by deleting a previous qualifying phrase recognizing their right to attend “unless the trial court finds sequestration is necessary to a fair trial for the defendant.”

In the Florida case, which has not yet been ruled on, a police union sued to prevent the city of Tallahassee from releasing the names of two officers involved in fatal shootings, citing the law’s ban on disclosure of “information or records that could be used to locate or harass the victim or the victim’s family,” victim status in this case being asserted on behalf of the officers. Florida’s state constitution contains a celebrated “sunshine” provision guaranteeing the public access to a wide range of official records, but an intermediate appeals court ruled that voters’ approval of the Marsy’s Law package implicitly rolled back the public’s previously established sunshine rights.

Whatever the outcome of the Wisconsin and Florida challenges, I argue in the Brennan piece, “advocates and policymakers should be on notice that Marsy’s Law generates outcomes that are hard to defend in principle.”