Marsy’s Law 2.0 Still Has Many Serious Problems

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Marsy’s Law 2.0 (SJR102) was introduced on Wednesday, February 27, 2019, and it corrects some of the major problems with the original Marsy’s Law proposal (SJR101) by removing entirely the ambiguous and undefined right to “reasonable protection from the accused.” It also adds “or the right to keep and bear arms under Section 11, Article I, of the Constitution of the state of Idaho” to the language which says that “Nothing in this section is intended to, or shall be interpreted to, supersede an accused’s federal constitutional rights…”

In other words, the new version of the bill does fix a couple of the problems in the old version. Hooray… Now for the list of problems that it does not fix.

Marsy’s Law 2.0 still presumes guilt rather than innocence.

The proposal defines a “crime victim” as “an individual who suffers direct or threatened physical, financial, or emotional harm as the result of the commission of a crime or juvenile offense.” There are several problems here including the use of vague and undefined terms such as “threatened” and “emotional harm,” but perhaps the greatest problem is that this language suggests that “a crime” can exist prior to the conviction of “the accused.”

If “the accused” is properly regarded as ‘innocent until proven guilty’ (which is the fundamental principle of western justice), there can be no pre-conviction determination that a “crime” has even occurred. At most, there may be an alleged crime committed by an alleged perpetrator against an alleged victim. None of these three things can actually be said to exist until after a conviction has been secured.

Under Idaho’s existing constitutional provision dealing with victims’ rights, a crime victim has the right to “be heard, upon request at all criminal justice proceedings involving a plea of guilty…” [Emphasis added.] SJR102 removes “of guilty” from the constitution, leaving a right to “be heard” even when the defendant enters a not guilty plea. How are we supposed to maintain the presumption of innocence if the existence of a “crime victim” is treated as a foregone conclusion?

Was Christine Blasey Ford a “crime victim” when she made unproven accusations of sexual assault against Brett Kavanaugh? Was Jussie Smollett a “crime victim” when he made false accusations of assault against some unidentified alleged Trump supporters? Was Crystal Gail Mangum a “crime victim” when she falsely accused three Duke lacrosse players of rape?

Under SJR102, each of these individuals would likely have been considered a “crime victim” with special constitutional rights. The fact is that unscrupulous individuals levy false accusations against innocent people every single day, yet SJR102 declares that these charlatans are “crime victims” based on their allegations alone. Is this how we want to define justice in Idaho?

Marsy’s Law 2.0 still ignores common sense.

Is it possible for someone who is “the accused” to also be a “crime victim”? Common sense says yes. Consider someone who has been forced to defend themselves using deadly force. An individual who is the victim of a crime such as home invasion or assault can also find themselves as “the accused” when an overzealous prosecutor endeavors to paint self-defense as aggression.

What about cases in which multiple parties engage in violence against each other? From a bar fight to a domestic violence scenario, it is quite possible for there to be two or more people who are simultaneously alleged to be both victims and perpetrators of crimes.

SJR102 ignores these possibilities entirely, however, stating emphatically that “The term ‘crime victim’ does not include the accused…” This is just another predictable problem that results from trying to claim that there can be a “crime victim” before we even know for sure if a crime occurred.

Marsy’s Law 2.0 still compromises due process.

The existing constitutional provision dealing with victims’ rights says that a crime victim has the right “to refuse an interview, ex parte contact, or other request by the defendant, or any other person acting on behalf of the defendant, unless such request is authorized by law.” [Emphasis added.] SJR102 deletes the phrase, “unless such request is authorized by law” from the constitution, potentially allowing an alleged victim to withhold critical and even exculpatory evidence in a criminal trial.

Marsy’s Law 2.0 still takes away the legislature’s power to define terms.

The existing constitutional provision dealing with victims’ rights says, “The legislature shall have the power to enact laws to define, implement, preserve, and expand the rights guaranteed to victims in the provisions of this section.” [Emphasis added.] SJR102 deletes the word “define” from this sentence. If the power to define the scope of rights does not belong to the legislature, it will naturally revert to the courts.

Marsy’s Law 2.0 still hinders progress toward meaningful criminal justice reform.

Some of the central goals of the criminal justice reform movement include streamlining the criminal justice process, reducing incarceration rates, reducing the length of sentences, adopting alternative sentencing, and the restoration of rights following the successful completion of probation and/or parole. SJR102 imperils and even stymies progress on these objectives.

Marsy’s Law 2.0 still creates unfunded mandates.

Nearly every change made by SJR102 has the potential to increase the costs of criminal proceedings. More hours will be required by prosecutors and defense attorneys—including already overworked public defenders. Trials will be longer and juries will spend more time hearing testimony. Probation and parole hearings will be lengthened and delayed. “The accused” may have to spend more time behind bars, and not just after sentencing. The growing problem of pre-trial incarceration (itself a glaring violation of the principle of ‘innocent until proven guilty’) will only continue to escalate under this proposal.

In addition to the costs borne by the state, counties and cities (and ultimately the taxpayer) will be on the hook for increased and unreimbursed costs which may exceed half a million dollars per year. Just running SJR102 as a proposed constitutional amendment will cost in excess of $200,000.

Conclusion

While Marsy’s Law 2.0 fixes a couple of the problems in the original proposal, it maintains a significant list of concerning complications that render it unworthy of support. Amending the state constitution is not something that should be done lightly or with any unanswered questions or lingering reservations. If Idaho’s protections of victims’ rights need to be updated, this can be done by amending statute (which is far easier to correct later) rather than by amending the state constitution (which requires a complicated and lengthy process to correct.) Idahoans will not be served or protected by the adoption of Marsy’s Law. On the contrary, we will all suffer should this flawed proposal become part of our state constitution.

I strongly urge you to oppose SJR102.

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