PRESS EDITORIAL: A flawed referendum with good intentions

The innocuous wording of the victims rights referendum question on Wisconsin’s April 7 ballot invites a yes vote. But a thorough reading of the proposed constitutional amendment and the well-documented record of the problems faced by states that have passed similar measures suggest a not-so-fast approach.    

The referendum question asks whether the state constitution should be amended “to require that the rights of crime victims be protected with equal force to the protection afforded the accused . . . and to allow crime victims to enforce their rights in court?”

The proposed amendment is far more complex than the brief summary that will be on the ballot and comes with the potential for undermining a fundamental principle of justice while burdening taxpayers with the cost of meeting numerous new requirements in the criminal justice process.

 It goes without saying that crime victims have rights that deserve statutory and constitutional protection, and they have that in Wisconsin. In 1980, Wisconsin was the first state to adopt a crime victims bill of rights. In 1993, it approved a constitutional amendment that further strengthened victims’ rights.

In an article in last week’s Ozaukee Press, Beth Hodorowski, who retired recently after an admirable career as Ozaukee County’s victims and witness coordinator, described the service she gave to victims for 30 years as providing “a place where they can get answers, understand what’s happening in the legal process and participate in the process and get support and understanding.”

With victim support already strong in Wisconsin, why is a victims rights amendment referendum on the ballot?

The short answer is that a resolution approving the amendment was passed twice by bipartisan votes of the Legislature. Voter ratification is the next step.    

The more detailed answer is that the Legislature was heavily lobbied to pass the resolution by an organization funded by Henry Nicholas III, a billionaire tech firm founder who has started a movement to amend all 50 state constitutions and the U.S. Constitution to adopt what he calls Marsy’s Law for All. The amendment is named after his sister, who was murdered by an ex-boyfriend in 1983.

The Marsy’s campaign was one the biggest lobbying spenders in Wisconsin in 2017 and 2018. Forbes magazine reported that Nicholas spent $71.8 million in six other states that had Marsy’s Law on the ballot.

The issue has been mired in controversy in a number of those states. It was approved by voters in Pennsylvania, but courts have granted an injunction that prevents it from taking effect on the grounds that it could violate defendants’ rights.

In Montana and Kentucky, the amendment was passed but overturned by courts. In South Dakota, the Legislature rewrote the amendment two years after it was approved because of problems it posed to police investigations and high costs to taxpayers.

In Wisconsin, a Dane County judge rejected a lawsuit seeking to keep the measure off the ballot, but ruled that the plaintiffs could petition to have Marsy’s Law invalidated if the referendum is passed. Legal turmoil is pretty much assured.

The feature of the amendment that most troubles opponents of Marsy’s Law is its equating of victims’ rights with the rights of the accused. Defendants’ rights are protections against the state depriving citizens of due process. Victims’ rights are rights that recognize injury done to crime victims by individuals, not the state. Legal experts have argued that Marsy’s Law, by giving victims enhanced influence in prosecutions, could undermine the fundamental tenet of American justice—the presumption of innocence.

It is telling that many of the opponents of the amendment have been strong advocates for victims’ rights, including the American Civil Liberties Union of Wisconsin.

In the controversy over Marsy’s Law in Iowa, the Coalition Against Domestic Violence opposed the amendment with the statement: “Marsy’s law makes sweeping promises the state cannot keep, claims to fix problems constitutions cannot solve and harms our justice system.”

Applied to Wisconsin, the same words make a strong argument for a no vote on the referendum.

 

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Ozaukee Press

Wisconsin’s largest paid circulation community weekly newspaper. Serving Port Washington, Saukville, Grafton, Fredonia, Belgium, as well as Ozaukee County government. Locally owned and printed in Port Washington, Wisconsin.

125 E. Main St.
Port Washington, WI 53074
(262) 284-3494
 

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