Why CACR22 failed 284-51

It is an important responsibility of all of us as lawmakers to ensure victims of any crime are afforded the protections they need, the opportunity to remain informed as the to the disposition of their case and to provide them with the respect and support needed as they move through the judicial process.  CACR22, or Marsy’s law, was an attempt to do that but, however laudable that endeavor, I believe the path this law took was flawed and had the potential to negatively impact our criminal justice system, including how victims may be treated.

The main goal of Marsy’s law is to place victim’s rights on a par with the rights of the accused. Currently, the accused’s rights are constitutional while victim’s rights are statutory.  The accused's rights are listed in the constitution because they are designed to protect the accused from the abuse and overreach of the government, as the accused’s civil rights and basic freedoms are at stake. The rights of the victim are there to protect the victim from the accused and not the state, as the victim is not at risk of going to prison and his or her civils rights are not at stake. The rights of both parties are equally important but they occupy a different space in the judicial system.

The rights of victims as listed in Marsy’s law already exist under state law in the New Hampshire Victim Bill of Rights which is far more extensive than what is proposed in Marsy’s law. These rights are found on the Department of Justice’s website where it lists 22 different rights. The problem appears to be that, in the past, these rights were not as well enforced as they should have been in the courts.  Adding a constitutional amendment outlining a subset of the same rights will do nothing to guarantee enforcement.

Marsy’s law would also allow any victim to be present at all court proceedings not just for adults accused of a crime but also for any accused juvenile, setting up a potential infringement of the civil rights of that juvenile. Often, in such situations, there are extenuating circumstances such as sexual abuse or physical violence suffered by the juvenile. This young individual may suffer from a mental illness or some other manner of disability that would require private, confidential consultations to determine the competence of such a child to stand trial. Under Marsy’s law, the victim could ask to attend such consultations, violating the juvenile’s right to privacy. Having the victim present at such interviews is not only unnecessary but might also be potentially harmful and counterproductive. This possible infringement would also pertain to adults with developmental disabilities.

Further, Marsy’s law guarantees full and timely restitution should restitution be appropriate. The lack of qualification or specification in the legislation as to where this responsibility lies opens up the possible interpretation that the state would have to take on that financial burden should the accused by unable to meet that demand.

The proposal, as written, pertains not only to felonies but also to misdemeanors. Offenses being prosecuted would involve both violent and non-violent acts, opening up tens of thousands of non-violent, misdemeanor level crimes to the provisions of the amendment, overburdening the court system with regards to both time and money.  Currently, the statute only applies to felonies.

Marsy’s law defines the concept of a person as not only a natural person, but also, as written, to include multi-million dollar corporations, both in and out of state. The intent of the legislation is to provide help to mom and pop businesses, but the language goes beyond that. Financial resources which should be directed towards victims of violent crimes in this state may have to be diverted towards the cost of defending major businesses from out of state. This is certainly not what Marsy’s law intended but that is how it may be interpreted and thus, enforced.

Marsy’s law states that the victim can refuse to be deposed. If the judge determines that a deposition is necessary, it is unclear if the victim can still refuse. To be able to do so would hamstring the judicial system and infringe on the rights of the accused.

In the end, a provision in Marsy’s law basically indemnifies the state from any damages should there be any violations of the amendment, making the law essentially unenforceable. This begs the question, if it can’t be enforced, what is the point of going through the motions of adding it to our constitution?  The monies that would be spent on litigation sorting out what Marsy’s law really means would be better spent making sure that the rights that already exist are enforced.

Two years ago, South Dakota passed a similar version of Marsy’s law. This fall, they are voting to repeal it for two reasons. First, it did not work as they expected and second, the financial costs were exorbitant.

Currently, the New Hampshire Victims’ Bill of Rights exists in law and is enforceable. The way forward is not to adopt a flawed amendment, but to make the necessary changes at the state level. Legislation can be introduced to address enforcement problems during our regular sessions in a far more timely and less expensive manner.

If, in the end, we determine there may be a place in our constitution for an amendment that reinforces the high value we place on victim’s rights, Marsy’s law is not the right amendment. Those who found they could not support CACR22, as written, include judges, prosecutors, defenders, law enforcement and even some victims. These individuals ought to be involved in addressing the problems listed here and in the public hearings in Concord, and in drafting language that will work.

The NH House of Representatives voted down CACR22 by a vote of 284-51. This does not have to signal the end of the discussion, but the beginning of a way forward that will result in a New Hampshire solution created by Granite Staters, not out-of-staters, for New Hampshire and its citizens.

Posted on 30 Apr 2018, 10:27 - Category: NH Legislature