‘Well intentioned but impossible:’ Why critics say Marsy’s Law will undermine the rights of the accused

Victim Advocate Jennifer Storm speaks at a rally for crime victims in the Pa. Capitol rotunda on April 8, 2019. (Capital-Star photo by John L. Micek)

This week on the Capital-Star, we’re exploring the idea of due process and how it intersects with state government — from legislation to investigations into lawmakers. Have a thought? Let us know at [email protected].

One week after her 17-year-old daughter Marsy was murdered by an ex-boyfriend, Marcella Leach stopped at a grocery store on the way home from her daughter’s funeral.

Leach didn’t know that Marsy’s alleged murderer had posted $100,000 bail just days earlier. Free to walk the streets of his southern California hometown, he entered a grocery store, where he crossed paths with Leach.

That encounter, in 1983, set in motion a nationwide victims’ rights movement that has changed constitutions in six states.

Pennsylvania could be next.

The Marsy’s Law for Pennsylvania campaign aims to amend the state Constitution through legislation that “secure[s] … justice and due process” for crime victims through each step of the criminal justice system.

The rights enumerated in the proposal — including the right to be notified of court proceedings and to be heard in post-conviction hearings — are already protected in Pennsylvania’s crime victims statutes, some of the most robust in the nation.

But proponents of Marsy’s Law say those rights are meaningless unless they’re protected by the state’s Constitution.

Opponents, including public defenders and the Pennsylvania chapter of the American Civil Liberties Union, say the proposal imperils due process rights for those accused of crimes.

Amending the constitution isn’t easy. To do it, the state House and Senate have to pass identical bills in consecutive legislative sessions. Voters get the final say over a proposed amendment during a statewide referendum.

Despite that high procedural bar, and the concerns of critics, the proposal has encountered little in the way of legislative resistance.

The House and Senate approved a Marsy’s Law bill, supported by Gov. Tom Wolf, last year. The House approved it again in April with just a handful of dissenting votes.

“I believe this is well intentioned,” Franklin County Rep. Paul Schemel, the only House Republican to vote against Marsy’s Law this session, told Fox-43. “But I believe really dangerous to our notions of justice, to our accused having a presumption of innocence.”

If the Senate approves the proposal again this session, voters will ultimately decide its fate in a statewide referendum. 

‘Well intentioned but impossible’

Victims rights amendments tend to do well with voters.

But the idea that constitutional rights for victims can exist without trampling on the rights of defendants “is well intentioned but impossible,” according to Bradley Winnock, president of the Pennsylvania Association of Criminal Defense Lawyers.

Public defenders such as Winnock are particularly concerned that Marsy’s Law could slow down criminal proceedings, since it would give victims legal standing to assert their constitutional rights in court.

If a victim is not informed of a trial proceeding, for instance, he or she can file a motion in court saying their  right to notification was violated. A judge would decide how to remedy it.

Winnock and others fear that could lead to delays and repetitions in trial and post-conviction proceedings.

“When we delay proceedings, and proceedings will be delayed, we are keeping people in jail,” Winnock said. “We are keeping people in jail who are disproportionately poor people of color and that will continue to do damage to people’s lives.”

Winnock is also unsure if Marsy’s Law would allow victims to refuse to participate in pre-trial investigative proceedings or refuse subpoena power from his defense office. The legislation gives victims the right “to refuse an interview, deposition or other discovery request made by the accused or any person acting on behalf of the accused.”

Elizabeth Randol, legislative director of the ACLU of Pennsylvania, wrote last year that the “broad language risks, if not invites, refusals that deny the defense access to legitimate discovery.”

“Additionally, this provision provides no guidance for how judges should resolve conflicts between a victim’s right to refuse and the accused’s right to disclosure,” Randol wrote in a memo opposing the legislation. “Whose rights should a judge favor if such discovery requests were necessary to provide the accused with a fair trial? “

Winnock noted that the proposal has not been the subject of any public hearings, which would provide a venue for stakeholders to raise their concerns in front of lawmakers and voters.

Jennifer Storm, Pennsylvania’s state victim advocate and a lead supporter of Marsy’s Law, said there’s no evidence to support those concerns.

She argued that constitutions in 32 states already protect victims rights, and none of those states have produced cases where a defendant’s due process rights were  curtailed by a victim asserting her constitutional rights.

“All of these other states have had constitutional rights on the books, some of them dating back to the ‘70s and ‘80s, and we have not seen any significant case law concerns,” Storm said. “We know when victims’ rights are enshrined in the constitution, the system works better.”

Storm and others argue that the rights afforded to victims under Marsy’s Law are identical to the ones they’re already given under state statute. They say that elevating those rights to the highest level of state law would ensure better compliance without compromising the rights of the accused.

“When these rights rise to the level of the constitution, they should not interfere with existing rights because they do not interfere with existing rights now,” said Greg Rowe of the Pennsylvania District Attorneys Association, which supports Marsy’s Law. “This is about the enforcement of existing rights and providing a remedy when the rights are not adhered to.”

Storm said such violations “happen more often than we want to admit.”

The Office of the Victim Advocate, which Storm leads, receives up to 100 complaints a year from victims who say their rights were violated by district attorneys offices or county victim services offices that fail to comply with state statutes.

And those are just the victims who choose to report a violation, Storm said.

Pennsylvania’s current law doesn’t provide a way to help those victims who say their rights have been violated, said Jennifer Riley, director of Marsy’s Law for Pennsylvania, a public advocacy group. There’s no way to enforce compliance with the law, and no penalty for offices that violate it.

“When rights are violated, there is zero remedy because victims do not have standing,” Riley said. “How do you have a right without a remedy?”

Crime victims vs. the Bill of Rights

Groups such as the ACLU say that the best way to prevent violations of victims’ rights is to provide more funding and resources to the offices that administer them.

But a constitutional amendment like Marsy’s Law “pits the accused against the victim in some ways,” the ACLU’s Randol said.

“It’s a mismatch to how our Bill of Rights is constructed.”

The 10 provisions included in the Bill of Rights outline the steps the government has to take before it can seize a citizen’s property, put them in jail, or otherwise curtail their liberty.  

Among other rights, it guarantees defendants a speedy public trial and an impartial jury.

When the Bill of Rights was written in 1791, the framers of the U.S. Constitution viewed the federal government as a suspect, potentially tyrannical force that had to be controlled, according to Michael Dimino, a constitutional law professor at Widener University Commonwealth Law School.

“The federal government was not looked at as an institution that could be used by the people to help them,” Dimino said. “It was looked at as something to be feared. So the best solution to preserve liberty was to limit its power.”

For that reason, the Bill of Rights doesn’t outline any protections for crime victims.

A measure like Marsy’s Law would have been “very much out of place” in the original Bill of Rights because it compels more action, not less, from the government, Dimino said.

A mandate that a victim must be notified of court proceedings, for instance, “would have required the government to provide more information and be more active than it might otherwise have,” Dimino said. The contemporary rise of victims’ rights amendments reflect a very different attitude toward the role of a government in its citizens lives.

At the end of the day, Dimino isn’t sure that a victims rights will impinge on the rights of the accused as long as they aren’t protected in the U.S. Constitution.

If there’s an issue of competing rights between a victim and a defendant, the defendant’s rights will supersede the victim’s, Dimino said, since the federal Constitution supersedes Pennsylvania’s.

The national Marsy’s Law campaign, which has already spent millions of dollars securing state-wide ballot measures across the country, hopes to ultimately amend Marsy’s Law into the U.S. Constitution.

Dimino said that’s easier said than done.

Three-quarters of the states would have to ratify the amendment to make it the law of the land.

“If the question is amending the U.S. Constitution,” he said, “always bet against it.”

Correction: An earlier version of this article misstated Jennifer Riley’s last name.  

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