By Andy Hoover
Elected officials and corrections administrators in Pennsylvania have been doing a bit of a victory lap after the recent announcement that our state prison population dropped by 1,000 people in 2018. On the heels of the passage of the Clean Slate Act — a new law to automatically seal some people’s criminal records from public view — some have gone so far as to call Pennsylvania “a model” for criminal justice reform.
But before anyone gets carried away with the idea that the commonwealth suddenly gets it on smart justice, tap the brakes: The legislature is on the verge of granting ballot access to a state constitutional amendment that would undermine the fundamental rights of people who are accused of crimes in pursuit of “victims’ rights.”
We all feel sympathy and compassion for people who have been victimized. It’s neither right nor fair that some people are harmed by someone else’s behavior. If the government can create programs to support victims, that’s all the better.
But the pending constitutional amendment — known as Marsy’s Law and bankrolled by a California billionaire — is a deeply flawed and downright dangerous undercutting of defendants’ rights. Supporters of the proposal say that they want the rights of victims to be equal in the Pennsylvania Constitution to the rights of the accused. Their narrative fails to appreciate why the state constitution includes the provisions it does — and excludes others.
A person accused of a crime faces the full weight of the state bearing down upon them. The state is attempting to deprive that person of their liberty, possibly even their life. Pennsylvania’s constitutional framers did not want the government to have the power to jail someone without layers of protections. That’s why our principles as a state — and a nation — include due process, a guarantee of counsel, and a presumption of innocence.
Contrast these with victims’ rights, which arise out of a dispute between two private people. One person’s rights against another person are fundamentally different than a person’s rights against the awesome power of the government. This is why our constitution, which lays out the restrictions on government power, includes defendants’ rights and why victims’ rights are primarily contained in statute.
The proposed Marsy’s Law constitutional amendment runs afoul of the protections granted to those subject to the power of the state.
The new guarantees in this proposal include a victim’s right to refuse “an interview, deposition or other discovery request” sought by counsel for a defendant. Think about that: A person’s freedom is on the line in a trial, and Marsy’s Law would prohibit them from having the necessary information that could prove their innocence or mitigate the severity of their sentence. That person’s right to a fair trial would be lost, and with it, the chances for grave miscarriages of justice to occur increase.
This legislation also gives victims a right “to be treated with fairness and respect for the victim’s safety, dignity and privacy.”
On its face, that sounds reasonable. We’re all about fairness and privacy here at the ACLU. But in other states, police officers have used this same Marsy’s Law to hide their identity after they shot people. Law enforcement officers have twisted a law intended for victims to hide their own behavior at the very moment when transparency is most critical — after an officer has committed an act of violence against a private person.
The proposal in Pennsylvania is littered with vague language. It includes the constitutional right “to proceedings free from unreasonable delay and a prompt and final conclusion of the case and any related post-conviction proceedings.”
This language could prevent a defendant from having the adequate time needed to present a defense or from the opportunity to have their case heard in the appeals process, which is guaranteed under the constitution. It’s worth noting that once in the constitution, vague language is incredibly difficult to amend when problems inevitably arise.
While our criminal justice system is far from perfect, the guarantees of both the Pennsylvania and U.S. Constitutions are intended to mitigate the mighty power of the state when a person is accused of a crime. Writing Marsy’s Law into Pennsylvania’s Constitution will further empower the state at the expense of the liberty of the person who is accused. Members of the General Assembly would be wise to slow down, rethink what they’re doing, and, like legislators in New Hampshire, Idaho, Maine, and Iowa, deny Marsy’s Law ballot access.
Andy Hoover is communications director for the ACLU of Pennsylvania. He writes from Harrisburg.