A Marsy’s Law for New Hampshire

Marsy’s Law, the proposed constitutional amendment regarding victims’ rights, has been receiving increasing attention in the legislature and in the news. The proposal, CACR 22, embodies a worthy goal – enshrining victims’ status in the criminal justice system in our constitution. The debate is shaping up less about whether, as a state, we should enshrine such status in the constitution, and more about how we do it. A proposal to amend our enduring state constitution deserves nothing but such a statewide and thorough debate.

Those who disagree with the details of the proposal and agree on its ultimate goal express many concerns: The erosion of a defendant’s presumption of innocence through new pre-trial discovery restrictions and the possible expanded role of counsel for the victim at trial; the systemic cost of a seeming victims’ right to counsel; the potential ethical conflict of a prosecutor serving as spokesperson for the victim and the state; conflicts with the existing constitutional rights for defendants as well as several other concerns.

Amidst this debate, we know, for example, that some victims unfairly do not get notice of hearings and release dates of their abusers. We also know that county attorney’s offices work extraordinarily hard to provide notice to and a voice for victims through their lawyers and victim witness advocates on budgets funded on a county-by-county basis. And, we know that the Department of Corrections Victim Services office reports 90 to 95 percent satisfaction with the services provided.

Nationally, we know that five states have passed as a constitutional amendment some form of Marsy’s Law though not the comprehensive one currently before the New Hampshire Legislature. We know that another 30 states include some mention of victims’ rights in their constitutions. We know that many of these 30 states enshrine victims’ rights in just a couple of sentences, deferring the details to statute.

We also know that, in one of those Marsy’s Law states – South Dakota, the Republican Speaker of the House is working to repeal their version of Marsy’s Law, citing unintended consequences like high costs to counties and protections they say have actually hampered investigations. We also know that in Maine and Iowa, coalitions against sexual and domestic violence have opposed Marsy’s Law, unlike in New Hampshire.

What is becoming clear through the healthy, contentious debate in New Hampshire is that this policy discussion is wrongly characterized by simple statements such as “victims should not have constitutional rights” or “victims must have equal rights to defendants.”

If there was a single takeaway from the public hearing in front of the Senate Judiciary Committee last week, it was this. Victims’ rights are a complex issue. There is no single or simple solution as to how we enshrine them as a state. But, the ongoing discussion is best served by keeping the focus on the role and needs of victims. The discussion is best kept separate from discussion about the wholly different rights of defendants, and should factor in New Hampshire’s constitutional traditions.

Crime victims deserve rights in the criminal justice system. Victims deserve constitutional status. But, we should not craft those rights based on comparison to a criminal defendant’s rights, which function to protect one still presumed to be innocent from the overwhelming power of the state. The criminal justice system does not work like the civil justice system in which the parties are on the same footing with equal rights. Marsy’s Law is not about giving victims’ rights against the state, but seemingly about giving victims’ procedural rights against the defendant – many of which would apply prior to conviction. Put simply, comparing a victim’s rights to a defendant’s rights is like comparing apples to oranges.

A victim has an important role in the criminal justice system’s complicated and enduring effort to produce as just an outcome as possible for everyone, including the victim. Important victims’ rights include the most cardinal rights to be treated with compassion, dignity, and respect, and the right to privacy. These rights embody constitutional-worthy principles, as opposed to the list of process-like rights currently included in the proposal before the New Hampshire Senate.

The current proposal over-constitutionalizes a set of detailed procedures in a very messy effort toward a sought-after “equality” of rights. It’s poor and mistaken constitutional draftsmanship is inconsistent with more than 200 years of New Hampshire constitutional tradition. It would look foreign in our constitution, which should not be surprising since the language comes from California.

New Hampshire already has an extensive victims’ rights statute, which is both enforceable and mandatory upon the Department of Justice to uphold. The many mandates of the statute are enforceable as a court specifically determined in 2001.

The overarching principles underlying our current statute are worthy of constitutionalization, but not the statutory language itself. The necessary and constitutional language is actually simple and true to New Hampshire tradition: “A victim of crime has the right to be treated with fairness and respect for the victim’s safety, dignity and privacy.” This approach constitutionally empowers victims’ rights and recognizes the foundational principle of victims’ rights, while rightfully leaving the complicated details of implementation to statute.

This alternative language would be a worthy outcome from the ongoing debate. It fulfills the goal of enshrining victims’ rights, but without Granite Staters swallowing a California statute in the process.

Albert “Buzz” Scherr is a professor of law at the University of New Hampshire School of Law.