Crime victim bill of rights could fall short
More funding from state needed, many are saying
MADISON - A new amendment to the state constitution aimed at protecting victims’ rights may fall short of its goal without more funding from the state, supporters and critics of the measure say.
The constitutional changes are known as Marsy’s Law: 16 rights for victims aimed at protecting their privacy and giving them more say in how crimes against them are prosecuted.
The amendment, which passed with 75% support in April, went into effect as soon as it was certified in early May. But now that courts that were closed because of COVID-19 are gearing up to reopen, questions remain about how prosecutions will change under the new rules.
Supporters, including Democratic Attorney General Josh Kaul, say the amendment will return power to crime victims. Opponents worry the wording on the ballot was misleading and that the amendment will have unintended consequences.
On top of that, a lawsuit over the amendment is moving into its next phase as part of an attempt to halt the implementation of the new rights.
“I do fear that the implementation of the amendment may fall short of the intention if there are not adequate system resources.” Theresa Wetzsteon, Marathon County district attorney
‘Potential for mess’
Michele LaVigne, a recently retired University of Wisconsin-Madison clinical law professor and director of the Public Defender Project, said implementing the new rules – which require prosecutors to include crime victims in more steps of a prosecution – could slow an already sluggish process.
“All court systems have shut down basically and there is a backlog from hell building up,” LaVigne said, referring to the four months courts have been largely closed because of the coronavirus pandemic.
“You drop Marsy’s Law into this, start with new notice, new right of somebody to be there and suddenly you’re rescheduling … oh my,” she said.
LaVigne, who served as a public defender in Wisconsin for 10 years, argued the ballot wording was vague and the amendment itself is unnecessary because Wisconsin already had comprehensive protections for victims’ rights.
“Sponsors of this amendment didn’t want voters to think about whether this is a good idea. So instead, it’s a nice simple text that’s all sunshine and lollipops – and it’s not,” LaVigne said.
“When you probe deeper, you realize this thing is a hornet’s nest.”
But Republican state Sen. Van Wanggaard said the focus of the amendment was to put victims’ rights on par with defendants’ rights. Under the previous laws, according to Wanggaard, every time a victim made a claim of rights, the accused’s rights would triumph.
“This is unacceptable,” said Wanggaard, who cosponsored the amendment. “Marsy’s Law will help level the legal playing field while still preserving a fair justice system.”
Implementing Marsy’s Law has been easier in Wisconsin than other states because it already had broad protections for victims, said Myranda Tanck of Marsy’s Law for Wisconsin, an arm of a national group pushing for similar measures around the country.
“What we’re hearing is now that Marsy’s Law for
Wisconsin is enacted, victims are at the forefront of the criminal justice process,” Tanck said. “The constitutional amendment has elevated the status of those rights to something that now has the force of the constitution.”
The future of the amendment
The push for Marsy’s Law came from billionaire Henry T. Nicholas III, whose sister Marsy Nichols was killed in California in 1983. His organization spent nearly $3.5 million on the effort in Wisconsin as of mid-March, according to state campaign finance records.
The effort faced a court challenge from the Wisconsin Justice Initiative, which sued to try to cancel the referendum. Dane County Circuit Judge Frank Remington allowed the referendum to proceed but said those challenging the measure could try to invalidate it if it passed.
Now the case is moving into the next phase. The group in June asked for an injunction that would strike the amendment from the state constitution. Remington has scheduled a hearing on the case for Aug. 13 and is expected to rule on the request then or soon after.
While most of the new rights in Marsy’s Law strengthen existing ones, one provision allows victims to withhold evidence in some instances. Asma Kadri Keeler of the American Civil Liberties Union of Wisconsin called that a “recipe for more wrongful convictions.”
Marsy’s Law was added to Florida’s constitution in 2018. Since then, police agencies have used the new rights to curtail the flow of information to the public when a crime is committed.
At the end of May, just days after the death of George Floyd, a Florida police officer fatally shot a Black transgender man suspected in a stabbing. Because the Tallahassee Police Department claimed the officer was a victim in the case, the identity of the officer has been kept from the public under Marsy’s Law.
After similar laws were put in place in states like California, South Dakota and Illinois, there was “mass chaos and confusion,” Kadri Keeler said. Some states, like Ohio, are also going through litigation over the implementation of the new rights.
Both Kentucky and Montana approved a Marsy’s Law amendment to their respective constitutions but eventually overturned it, declaring it unconstitutional.
But Kaul said Marsy’s Law isn’t going to immediately change how people in the courtroom go about their day-to-day work – mainly because of changes in court procedure from COVID-19. The pandemic also makes it challenging to say exactly what the effect has been.
“Any time you add additional people into the scheduling of proceedings, that always creates a potential reason for delay,” Kaul said. “But I think it’s vital victims have the opportunity to be heard and that the delay (is) minimal.”
Dean Strang, a Madison defense attorney who was featured in the Netflix series “Making a Murderer” and public critic of the amendment, also doesn’t think there’s much different now from before the law went into effect.
He’s more worried it will give victims false hope. “The reason I didn’t like this is I think it’s a fraud on victims. It’s utterly deceitful. You’re promising them a bag of wind,” Strang said.
He added the amendment was more for elected officials than anyone else, even though there’s no new funding to district attorneys or police departments to do anything differently.
“There’s not a dime that comes along with this,” Strang said. “It allowed legislators to say, ‘Look at the great thing I did for crime victims,’ but it doesn’t change any reality at all for the victim of a crime.”
Funding Marsy’s Law
The largest shift Marathon County District Attorney Theresa Wetzsteon has seen in prosecuting cases since Marsy’s Law went into effect is more consideration of a victim’s rights and time.
Before the passage of the amendment, prosecutors and defendants often conducted scheduling conferences in the judge’s chambers and out of the public’s view, according to Wetzsteon. There has also been a significant increase in the number of hearings held in court.
But that new respect for victims might not be able to last if proper funding and consideration of unintended consequences aren’t taken into account, she said.
“I do fear that the implementation of the amendment may fall short of the intention if there are not adequate system resources,” Wetzsteon said.
For example, Wetzsteon said, more on-the-record hearings require additional judicial time, and many county courthouses are understaffed to handle their caseloads.
Victim-witness coordinators – whose role is to establish communication with victims and witnesses, and advise them of their rights – throughout the state are underfunded as well, Wetzsteon said.
The attorney general agreed and said more funding is needed. “I think we need to reform the way that (formula) works so we are providing more support, both because it puts a strain on county budgets and because it’s vital that we not lose our victim-witness professionals,” Kaul said.
“The Legislature voted overwhelmingly to adopt Marsy’s Law (by putting it on the ballot), so I’d like to see them follow that up with the funding that’s needed to make sure those rights are a reality for victims.”