Marsy’s Law passed in the Spring Primary, but what does it actually mean?

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The Spring Primary Election sparked plenty of controversy for Wisconsin residents, with no shortage of voting complications and tightened restrictions due to the coronavirus pandemic.

With Joe Biden taking the win — along with 58 pledged delegates — in the Democratic presidential primary, and Jill Karofsky snagging the state Supreme Court election from conservative incumbent Daniel Kelly, there’s much for voters to digest. 

Another statewide change will be Marsy’s Law — a new amendment to the Wisconsin Constitution which grants more rights to victims of crime.

The amendment was supported by an overwhelming majority in this month's election, passing with 75 percent of the vote. Before going to a statewide ballot, the measure was approved by state legislative sessions in both 2017 and 2019.

Other states, including Illinois and California, have passed similar changes to their constitutions. Marsy’s Law is named after Marsy Nicholas, who was murdered by an ex-boyfriend in California in 1983. A week after her death, the ex-boyfriend confronted Nicholas' family in a grocery store when they did not know he had even been released on bail. 

The amendment entitles 16 new crime victim’s rights, such as privacy, respect, timely information, proceedings free from unreasonable delay, and compensation. Nicholas’ billionaire brother, Henry, is the primary funder of the Marsy’s Law for All campaign.

With the amendment — and more protections under the state constitution — in place, there is hope more victims will report crimes without fear of retribution.

“Our focus needs to be caring for and protecting victims,” Sen. Van Wanggaard, R-Racine, said. “We’ll work hard in the state Legislature to build on Wisconsin’s history on victim’s rights by making them truly equal.” 

And while the amendment appeals to common common sense  on the surface, opponents like the ACLU of Wisconsin and the Wisconsin Justice Initiative (WJI), say the wording of the amendment is misleading. 

The amendment appeared on the Spring Primary ballot in the following language: 

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

“Its supporters incorrectly say [the amendment] would ‘level the playing field’ for victims of crime,” the WJI’s website says under a tab titled ‘Marsy’s Flaws’. “Some of the proposed rights in Marsy's Law are laudable, some are bad ideas and some are unrealistic.”

Additionally, opponents state limiting the entire amendment to ‘yes’ or ‘no’ restricts referendum voters who are in favor of some of the new rights proposed but opposed to others.

“We should be cautious when approached with…a ‘one-size fits all approach’ to our State’s Constitution,” said Sen. Jeff Smith, D-Eau Claire, before the amendment was passed in the 2019-’20 legislative session. “Change to our State’s Constitution demands heavy scrutiny. Even more scrutiny should be given to rushing changes to our State Constitution.”

The ACLU of Wisconsin states Article I of the Wisconsin Constitution explicitly provides for victim’s rights during criminal proceedings — like fairness, dignity and privacy — so long as they do not limit the rights of the accused. 

“Wisconsin’s version of Marsy’s Law undermines this framework – in effect, eliminating certain crucial constitutional rights of the accused,” said Asma Kadri Keeler, staff attorney for the ACLU Wisconsin. “In reality, Marsy’s Law fails to meaningfully improve upon existing protections for victims while creating a host of new problems and simultaneously weakening the rights of the accused.”

Both the ACLU of Wisconsin and the WJI share the same major concern of Marsy’s Law: it removes the presumption of innocence. 

According to Kadri Keeler, Marsy’s Law tips the scales of justice towards the accused, allowing a person accusing another person of a crime to withhold evidence, a “recipe for more wrongful convictions.”

“Forcing voters to choose between empathy for victims and protections for the accused is a false choice,” Kadri Keeler said. “We can and should protect victims and defendants — both. The alternative is to jeopardize the integrity and fundamental fairness of our judicial system.”

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