Mark Friese: "Marsy's Law" Ballot Measure Is A Bad Idea

“Marsy’s Law” is a bad idea. The North Dakota Constitution should not be amended because victims’ rights have not been respected in California.

Since 1987, when the North Dakota Legislature led the nation by passing comprehensive statutes providing fair treatment of victims and witnesses, prosecutors and judges have vigilantly and selflessly protected the rights of victims and witnesses.

Regrettably, proponents of Marsy’s Law, an initiated measure which would amend the state Constitution under the auspices of advancing victims’ rights, fail to recognize these historical efforts. If adopted, Marsy’s Law will actually hurt those purportedly protected. In addition to hurting victims, the proposal would create irreconcilable conflict with existing laws and procedures, and will have far-reaching deleterious consequences.

Not surprisingly, proponents fail to cite a single example of a North Dakota case which warrants modification of existing law. Judges and prosecutors in North Dakota are exceedingly conscientious, and faithfully discharge their respective obligations to ensure witnesses and victims receive fair treatment. Equally, my colleagues within the criminal defense bar take seriously their obligations as officers of the court, including the concomitant obligations of civility and respect to witnesses and victims.

North Dakota Century Code Chapters 12.1-34 (Fair Treatment of Victims and Witnesses) and 12.1-35 (Child Victim and Witness Fair Treatment Standards), both in effect since 1987, comprehensively ensure fair treatment, respect, and preservation of the rights of victims and witnesses. In many respects, these existing laws provide more detailed and better protections than the proposed initiative. Existing victims services provided by competent professionals statewide, like those provided by three full-time victim/witness coordinators in the Cass County States’ Attorney’s Office, would arguably be supplanted.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]If adopted, Marsy’s Law will actually hurt those purportedly protected. In addition to hurting victims, the proposal would create irreconcilable conflict with existing laws and procedures, and will have far-reaching deleterious consequences.[/mks_pullquote]

Existing services, like offender release notification provided by the Department of Corrections and local sheriffs are time tested and effective. The implicit message that North Dakota law fails to protect, and that North Dakota prosecutors, judges, defense lawyers, and law enforcement fail to account for victims’ rights is wrong, and frankly, offensive.

If adopted, the initiated measure would amend the North Dakota Constitution to set forth broad victims’ rights. At first blush, this is an attractive proposition, readily supportable by everyone. But the danger is in the details. Constitutional provisions, by their very nature, are broad, requiring court interpretation and litigation to define their contours. This takes decades. Constitutional concepts like “due process,” “equal protection,” or “fair trial” sound straightforward, but are intentionally broad and interpretive.

While broad interpretive concepts may be good for lawyers who earn their living from litigation, and while they may provide a “feel-good-atmosphere,” they are of limited utility in day-to-day proceedings. Unlike broad constitutional concepts, statutes are far more precise, and far less interpretive. Existing North Daktoa victims’ rights statutes are far more effective than the broad concepts advanced by the initiated measure. Unfortunately, if Marsy’s Law is adopted, many of those effective, practical concepts would arguably be superseded and ineffective.

More problematic is the hierarchical nature of law.

When constitutional provisions conflict with statutes, the constitutional provision prevails. So, by way of example, the current proposal purportedly provides victims the right to be present at “all proceedings involving the criminal or delinquent conduct.” Under existing law—North Dakota’s adoption of the Uniform Juvenile Court Act—witnesses are generally permitted to observe only portions of proceedings to terminate parental rights, informal adjustment conferences, or dispositional proceedings involving juvenile offenders.

This is for good reason—the Legislature has rightly concluded that in balancing the punitive and rehabilitative aims of juvenile proceedings, some measure of confidentiality is important. Existing laws protecting the integrity of the juvenile court process would be trumped—or in legal parlance, “repealed by implication,” by the initiative.

Likewise, court rules designed to protect the integrity of the trial process—like N.D.R.Ev. 615 which provides witnesses are to remain out of the courtroom unless testifying so that their testimony is not influenced by the testimony of others—would be implicitly repealed.

I asked a number of my colleagues—both prosecution and defense—to identify a list of concerns to help me outline the dangerous details. Included initially were concerns that the measure would:

• Abolish confidentiality currently used in juvenile court proceedings;
• Repeal existing restitution practices, with the unanticipated outcome of further expanding the prison population because some offenders are simply unable to pay “full restitution” as required;
• Require additional prosecutors to seek restitution on behalf of insurance companies or large corporations (who currently utilize their own counsel to do so);
• Repeal many specific protections and procedures in the 30-year time-tested statutes protecting victims;
• Result in increased costs to the state and the accused because more cases would go to trial when victims decline to participate in pretrial proceedings or discovery;
• Result in victims having to testify publically in open court, rather than the protected environment in which depositions occur;
• Create an increased and unnecessary level of adverseness in the pretrial investigative stages of cases;
• Repeal multiple procedural and court rules;
• Perhaps require the State to hire and appoint counsel for victims (right to appointed counsel may be required because of the constitutional nature of the proposed rights);
• Create lawsuits against the state for failure to vindicate victims’ rights (currently the victims’ rights statutes do not permit victims or defendants to sue the state for noncompliance, but both victims and defendants would likely gain that right);
• Create additional opportunities for convicted offenders to appeal and challenge their convictions;
• Create additional welfare obligations through subordination of child support obligations to restitution because restitution would have to be paid “before paying any amounts owed to the government” (“the government” would include child support enforcement units);
• Impose an obligation on the court and prosecution to provide release and custody status changes to victims and witnesses (a huge task currently professionally executed by correctional authorities);
• Taint the trial process by permitting witnesses to review “any report or record” (i.e., all other witness statements), and to be present in the courtroom while other witnesses testify;
• Require prosecutors to identify, consult, and advocate for broad classes of “victims,” and perhaps to pick and choose some over others (for example, a large scale credit card or financial crime will require prosecutors to identify credit card companies, shareholders, officers, and others, as “victims” and to advocate on their behalf);
• Require probation officers to notify “victims” of changes in probation conditions, or that offenders have been ordered to short periods of incarceration as “intermediate measures” of probation.

More concerns are being raised daily as practitioners study the implications. The most immediate concerns are obvious conflicts between the broad constitutional concepts and the specific conflicting statutes. Under the law, the constitutional would control. The more difficult issues would result from the obvious conflicts between competing constitutional provisions. In the criminal trial process, undoubtedly the constitutional rights of the accused would prevail over the constitutional rights of the accuser.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]Unknown is how a court would balance the constitutional right to a fair trial with competing victims’ rights.t[/mks_pullquote]

That makes sense, because in criminal court the accused faces fines, imprisonment, and countless disabilities at the end of the case. Unknown is how a court would balance the constitutional right to a fair trial with competing victims’ rights. While proponents argue Marsy’s Law would not diminish the rights of an accused, that assurance is flatly wrong. The right of the accused to have a fair trial includes time-tested fair trial procedures, like discovery, depositions, exclusion of witnesses from the courtroom during trial, prohibitions against collusion among witnesses, and dozens more—all of which would be abolished by the proposal.

I agree with those who have concluded this proposition does more harm than good.

Concerns of abuse abound. Experienced judges, prosecutors, and defense attorneys can readily point to abuses of the criminal justice process—like the scorned spouse falsely accusing the other to obtain an advantage in an unrelated divorce proceeding. Likewise, those most familiar with the criminal court process will readily admit that existing procedures provide a time-tested balance that works. Existing rules prohibit abuses of the discovery process.

Lawyers who mistreat witnesses face prompt and harsh consequences. The fact that proponents are advancing the proposition because problems have occurred “in other states” is telling. North Dakota should not be used as a testing ground for out-of-state advocacy interests.

As a practicing lawyer who has participated in the development and implementation of law, I have developed a profound respect for the North Dakota Legislature. While I do not always agree with the result, I have witnessed firsthand the open, honest, and sincere balancing of competing interests in the formulation of public policy and law. I am convinced that the balancing of interests in fair trials and victims’ rights is best suited for open debate and analysis in a legislative forum, rather than through an initiated measure which creates so many conflicts and unintended consequences.

Cast in a light of “victim versus accused,” it is politically expedient and safe to support this initiated measure. Political expedience should not, however, supplant time-tested and informed public policy.