Teri Jendusa Nicolai, chair of Marsy’s Law for Wisconsin, says the proposed amendment gives victims “equal footing” in the justice system.
What could be wrong with giving crime victims “additional rights”? Wisconsin voters will be asked April 7 whether to amend the state constitution to do just that. But defense attorneys and a handful of lawmakers say the amendment is not that straightforward and could negatively impact the criminal justice system.
The proposal is part of a nationwide effort, funded by a California billionaire, to add what’s known as “Marsy’s Law” to every state constitution. Since 2017, Marsy’s Law for Wisconsin has spent more than $1.5 million lobbying lawmakers to change the constitution and quickly shepherd the proposal through the Legislature. The group recently hit the airwaves with TV ads encouraging voters to adopt the amendment.
“I was thrown to the ground. His hands were around my neck choking me. I escaped with my life only to be left in the dark by the justice system,” Christina Traub of Madison says in the TV spot about a 2015 domestic abuse incident. “My abuser had more rights than I did. We can change that. Marsy’s Law will give victims a voice and guarantee we have equal rights.”
Attorney Craig Johnson, president of the Wisconsin Justice Initiative, says “voters shouldn’t have to vote in the dark.”
The Wisconsin Justice Initiative unsuccessfully sought to keep Marsy’s Law off the ballot with a lawsuit filed in December 2019. The group argued the wording of the ballot question fails to explain the “drastic changes” the constitutional amendment will bring to the criminal justice system.
“People are going to see this nicely worded question that seems to be as American as apple pie. But the information on the ballot question is very limited and it doesn’t even begin to explain the far-reaching changes that this constitutional amendment would incorporate into the criminal justice system,” Johnson tells Isthmus. “Wisconsin voters have the right to a full and complete explanation of exactly how this might affect our court system.”
Johnson says some provisions of Marsy’s Law are laudable and others mirror what’s already on the books. He’s concerned a few of the additional rights in the amendment may leave the accused unable to defend themselves in court, particularly language about the victim’s right “to privacy” and right to “refuse an interview, deposition, or other discovery request. ”
“There is a very real possibility of someone stonewalling investigations and covering up information that could potentially prove someone’s innocence,” says Johnson. “That’s a real due process issue. It’s this kind of unforeseen issue that no one’s going to have a clue about when they go into the voting booth.”
Johnson says the amendment will also apply to more than just victims of violent crimes.
“A business, its owners, could be a crime victim,” says Johnson. “Does a business have a right to privacy or the right to refuse an interview, deposition or other discovery requests?”
Teri Jendusa Nicolai, chair of Marsy’s Law for Wisconsin, told The Capital Times in December that the Wisconsin Justice Initiative’s lawsuit was “a slap in the face to survivors of all types of crimes in the state of Wisconsin.” She says her group has spent three years educating the public about Marsy’s Law.
“I really do believe that the more help we give victims, the more victims will come forward because they’ll see that the system is on their side,” says Jendusa Nicolai. “The more victims come forward, the less crime there will be on the streets.”
The proposed amendment significantly expands section 9m of Article I in the Wisconsin Constitution which already protects victims’ rights — and was added by voters to the state constitution in 1993. It’s in the same section that ensures free speech and a free press, prohibits slavery, and guarantees trial by jury in the state. Section 7 of Article I — which has not been amended since the state constitution was written in 1848 — outlines rights of the accused including to “demand the nature and cause of the accusation against him.”
Currently, the state constitution ensures crime victims have “privileges” including being treated with “fairness [and] dignity,” a timely trial, restitution, the opportunity to make a statement to the court, information about the outcome of the case and the release of the accused, and other protections.
The Marsy’s Law amendment would replace that language with “victims shall be entitled...to rights” including “dignity, respect, courtesy, sensitivity, and fairness,” the provisions currently in the constitution, plus more rights including privacy, and “to refuse an interview, deposition, or other discovery.” Additionally, Marsy’s Law adds a definition for “victim,” provisions that allow family members to represent the victim, and authorizes victims to assert their rights at court proceedings.
Instead of the constitution stating that victims’ rights shall not “limit any right of the accused,” Marsy’s Law states victims’ rights are “not intended to supersede” the rights of the accused.
In order to be added to the Wisconsin Constitution, Marsy’s Law first had to be approved by both chambers of the Legislature during two consecutive sessions. The state Assembly and Senate did that in 2017 and 2019 with support from a majority of Republicans and Democrats. The final step for Marsy’s Law to be added to the state constitution is approval from voters.
When it was up for second consideration in the Legislature on May 15, 2019, the Assembly passed it 82-15 with just a brief statement of support from its lead sponsor Rep. Todd Novak (R-Dodgeville). That same day, Marsy’s Law passed the state Senate, 27-5.
Sen. Fred Risser (D-Madison) voted against the amendment. He argued it is written like a state law and is twice the length of the U.S. Bill of Rights.
“We really need more lawyers in [the Wisconsin Senate] that understand the difference between a constitutional amendment and state statutes,” Risser said during the floor debate on May 15. “Constitutional provisions are drafted broadly and designed to express overarching rights and principles rather than details. Statutes are supposed to provide concrete guidelines.”
Sen. Van Wanggaard (R-Racine) was the lead sponsor of Marsy’s Law in the Senate. He agrees that many of the provisions in the amendment are already on the books.
“[But] when it comes up against constitutional law, it never stands up,” said Wanggaard during the Senate debate. “This is about providing equal legal rights to victims in the criminal justice process. Under the current system, victims are often treated as second-class citizens.”
Casey Hoff, a criminal defense attorney in Sheboygan, says comparing the rights of victims to the rights of the accused isn’t a fair comparison.
“Victims aren’t being subject to having their liberty taken away by the government. That’s exactly why we have the protections that we do for defendants,” says Hoff. “Marsy’s Law could easily be read to compromise a defendant’s rights. How do those two things interact? The answer is we just don’t know.”
Marsy’s Law has already been added to the constitutions of nine states, with efforts underway in seven others including Wisconsin. It’s been the mission of one man, billionaire investor Henry Nicholas, to see legal rights for victims expanded in every state constitution and eventually the U.S. Constitution.
In 1983, Nicholas’ sister Marsy was murdered by her ex-boyfriend in Los Angeles. A week after the murder, Nicholas and his mother saw their loved one’s killer in a grocery store while he was out on bail pending trial. Starting with a successful California ballot initiative in 2008, Nicholas has spent more than $100 million funding campaigns to have Marsy’s Law added to state constitutions.
Matt Rothschild, executive director of the Wisconsin Democracy Campaign, says the push for Marsy’s Law in Wisconsin was not a homegrown effort. So why has the amendment received bipartisan support from lawmakers?
“Because they’re being cowardly,” says Rothschild. “They don’t want to face an ad the next time they’re running that they were in favor of some criminal as opposed to a person who was horribly victimized.”
Jendusa Nicolai says concerns about unforeseen consequences of Marsy’s Law are exaggerated. She adds that the Wisconsin amendment was crafted by a coalition of law enforcement groups, victims’ rights organizations, as well the support of former Republican attorney general Brad Schimel and current democratic attorney general Josh Kaul.
“I have to tell you that I have never run across a person — that wasn’t a defense attorney — who thinks Marsy’s Law is a bad idea,” Jendusa Nicolai tells Isthmus. “All it does is give victims a lot of the rights they already have. It just makes them stronger. So they have equal footing during the whole process.”