Who’s got the right?

Marsy’s Law on the ballot April 7

March 19, 2020

5:00 AM

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.”

Comments (6)

Comment Feed

NO since Marcy’s Law already exists in the Wisconsin Constitution

I started out writing how a yes or no vote on Marsy’s Law didn’t matter. The reason for my indifference? It’s because there’s not much in Marsy’s Law that hasn’t already been in Wisconsin’s Constitution since 1993.
Besides, it’s destined to win. Especially in public, asking people if they support victim’s rights is akin to asking people if they like puppies. Who’s going to say no?
Look at the 1993 Wisconsin Constitution’s section on victim’s rights and compare it with the list of "new" rights” from Marsy’s Law. The wording is different, but except for the right to refuse a deposition, the two lists are the same.
A victim’s equal footing with the defense? Check. A victim’s right to safety before and after the crime? Check. Restitution, privacy, a notice of bail or prison release, the right to sue if the prosecution, police, or courts fail to deliver on these rights? They’re all there in our State Constitution.
The opposition has concentrated on a victim’s right to refuse deposition. As a revenge fantasy, I think it’s fantastic. But it’s smacks of a police state; better to guard against personal attacks by the defense and create a safe environment, than dismantle the fair trial aspect of our Bill of Rights.
So, when I voted no on my absentee ballot against Marsy’s Law, it wasn’t just because it’s nearly identical. It’s because I don’t like being manipulated by a public relations campaign.
I objected to being played by the puffery of the Marsy’s Law machine. This country is already shot through with big-money PR, and it has replaced real information. Many U.S. states do need better victim’s rights laws, but not Wisconsin. We’re good.
I do like Marsy’s Law’s push for police officers to hand out a card printed with victim’s rights. The public doesn’t know about them. Otherwise, Marsy’s Law wouldn’t have gained traction in Wisconsin.
Funding for crime victim rights ought to go towards hiring more victim’s advocates to sit with victims in a deposition for moral support and to shut down any cheap shots by the defense, to request depositions done remotely, and to interact with the law enforcement community. Every year since 1984, the federal government awards every state a maximum of $500,000 from the Department of Justice’s Crime Victim Fund. The current pot of money, financed by fines and penalties paid by convicted federal offenders, is worth over $12 billion as of 2008. There’s additional grant money available throughout the year, both private and public.

Mary Ann Swissler more than 4 years ago

Marsy's Law-not a lawyer!

I am an average WI citizen living in the Twin Ports area. I did not graduate from college, so I have no special education of any sort about the law or constitutions or anything else. But I think that the only thing this proposition is meant to do is to make people feel better. Victims deserve special consideration from society. We could and should treat them better. However in court and in the legal /justice system their rights are already guaranteed. Defendants and the accused are not treated equally or even fairly by almost anyone in the public or media. In order to keep trials and juries and everything else fair and impartial the accused needs rights. I don't think anyone should have the right to refuse a deposition by the proper authorities. That's insane. Under that idea you can never ever question anyone who's been victimized about anything! That's insane! How could we possibly have a fair system like we say and think we do with something like the "right to refuse " part of what makes the law fair?
This proposition only changes things in a way that I personally absolutely do not want.
Everyone deserves a fair trial. Even the accused. Which means everyone has the right to question the accusations. Victims don't get to be above our laws and justice system. Or at least they shouldn't.
100% against this amendment!!!!!!

Aleesha Whereatt more than 4 years ago

Marsy’s Law

What a load of crap, vote no people!

Timothy Krell more than 4 years ago

Marsy's Law will Strengthen Wisconsin's Victims' Rights

Opponents of victims' rights typically begin by saying they are all for victims' rights "BUT." The "BUT" is that victims' rights should be meaningless and unenforceable.

Wisconsin's Marsy's Law will strengthen many of Wisconsin's existing rights, their meaning and their enforceability. The amendment does replace the phase "privileges and protections" with the word "rights;" research into the legislative history will disclose that the term "privilege" was used interchangeably with the word "right" (such as the "privilege of the writ of habeas corpus..." or the "privilege against self-incrimination") and the word "protect" was used to underscore the concept that the state has an affirmative obligation to defend those enumerated "privileges."

Opponents also often raise false alarms about seemingly new or broadened victims' rights contained within Marsy's Law. Yet, these are already in Wisconsin law:

1. As noted in this article, Marsy's Law will not undermine defendants' constitutional rights since there is an explicit provision that the amendment "is not intended and may not be interpreted to supersede a defendant's federal constitutional rights."

2. Provide victims' with the right to “refuse an interview, deposition, or other discovery request." Wisconsin law (section 950.04(er)) says that victims may "not be compelled to submit to a pretrial interview or deposition by a defendant or his or her attorney..."

3. Since Wisconsin became the first state to enact victims' rights in 1980, those rights have extended to businesses (as well as governmental entities). Wisconsin victims' rights statute, section 950.02(4)(a), defines a "victim" as a "person against whom a crime has been committed." And, according to section 990.01(26), a "person" includes "all partnerships, associations and bodies politic and corporate."

4. Wisconsin's constitution and statutes now requires the state to treat crime victims with "fairness, dignity and respect for their privacy..."

So, what Marsy's Law will really do is make these and other victims' rights in Wisconsin more meaningful and more enforceable. The scare tactics by Marsy's Law opponents will not change these existing rights.

Steve Derene more than 4 years ago

Why Marsy's Law is Unnecessary and Dishonest to Victims and the Public

Mr. Derene's thoughtful comment makes a quite good case, actually, that Wisconsin law already assures victims every right or privilege, in Chapter 950 of the statutes, that the proposed constitutional amendment would. Why, then, amend the state constitution to provide merely redundant assurances?

The answer has little or nothing to do with victims, or with improving the speed or quality of justice that courts seek to render. It instead has much more to do with political posturing by legislators for their own gain. It has something to do, too, with the personal wishes of a Silicon Valley billionaire, who almost singlehandedly is funding this effort in many states.

But while the constitutional amendment won't actually expand any rights for crime victims, as Mr. Derene himself concedes at least implicitly, it will have the unintended but discernible effect of deceiving victims of crime, at a time in their lives when they may be most vulnerable to official deceit. The amendment provides no funding to courts or District Attorney's offices to meet its requirements. It affords victims no remedy of any substance if courts or prosecutors do not comply with its terms. And indeed, we can expect that only the rare moneyed victim could raise a violation of the amendment at all, because as a practical matter a victim would have to retain a private lawyer to pursue compliance. There is nothing self-executing about the amendment, in other words.

If victims were to have a real remedy under this constitutional amendment--and there is an unusual provision in the Wisconsin Constitution, Article I, Section 9, that purports to promise a remedy for every wrong--then the taxpayers of Wisconsin had better prepare to write some very large checks. There are tens of thousands of crime victims every year (and, wishful thinking aside, this amendment will not reduce that number by one person; offenders don't read the state constitution before acting, and the burdens of this amendment will fall on courts, prosecutors, and maybe taxpayers anyway) and the violations are potentially as many or more each year as there are crime victims. Now, legislators have insisted that there can be no money judgments against the state for violations of this amendment. But courts ultimately will make that decision--and that legislative insistence simply shows that lawmakers who trumpeted their support for this amendment's empty promises are unwilling to put money where their mouths are.

We all want fewer crime victims. But that will take real public will: greater humanity in our interactions, better schools, better mental health and drug treatment, more effective interventions in crime and the lives of offenders and victims alike. Lying to or trying to fool victims will not reduce their numbers. This amendment is a cruel deceit. I hope that Wisconsin voters who view political urgings to adopt empty constitutional amendments will reject it.

Dean Strang more than 4 years ago

Marsy's Law WILL Strengthen Wisconsin's Victims' Rights

I agree that victim services in Wisconsin (and elsewhere) are underfunded. I should have begun my previous comment with the observation that many people who claim to support crime victims are all for victims' rights so long as those rights are CHEAP, meaningless and unenforceable.

The importance of Marsy's Law is that it will provide crime victims with greater (though by no means complete) tools to seek actual remedies for violations of their rights. There have been a growth of many agencies available to provide crime victims with pro-bono legal assistance, such as those offered through the UW Law School, the Sexual Assault Victims Rights Project of Legal Action Wisconsin and nationally, through the National Crime Victims Law Institute and the National Crime Victim Bar Association.

In light of Wisconsin's 40 years experience with statutory rights and 25 years with constitutional rights, there have been surprisingly few cases litigating those rights. And since Marsy's Law will add little in the way of substantive rights, it is unclear to me how or why adoption of Marsy's Law will incur great costs (actually, I would hope that adequate public funds were available for all criminal justice system components, including public defense). But cost should not be a deciding factor in determining fundamental rights.

I would think that Mr. Strang, as a defense attorney, would understand the need and significance of providing everyone with the appropriate means of ensuring the full exercise of their rights. Indeed, I would like to think that defense attorneys would actually be on the front lines of helping crime victims secure their rights.

Steve Derene more than 4 years ago