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PA CONSIDERS CONSTITUTIONALITY OF MARSY’S LAW

By Cheryl Bauer 

On November 5th, Pa voters were presented a ballot measure that would alter the state constitution to adapt a set of victim’s rights collectively known as Marsy’s Law. You may recall the question: 

“Shall the Pennsylvania Constitution be amended to grant certain rights to crime victims, including to be treated with fairness, respect and dignity; considering their safety in bail proceedings; timely notice and opportunity to take part in public proceedings; reasonable protection from the accused; right to refuse discovery requests made by the accused; restitution and return of property; proceedings free from delay; and to be informed of these rights, so they can enforce them?” 

You may have also heard that the votes for this ballot question won’t be certified until the PA Supreme Court returns a judgment on the constitutionality of the proposed measure. 

The ballot question seems simple enough; however, that in itself is part of the problem cited by lawyers working with the ACLU: the amendment as proposed would include 15 separate enforceable rights that would affect multiple sections of the PA State Constitution. The language is not only in violation of Article XI of the PA State Constitution, which states, “When two or more amendments shall be submitted they shall be voted upon separately,” but it is a vague and incomplete representation of the constitutional amendment proposed. This is the basis of a constitutional challenge filed against Acting Secretary of State Kathy Boockvar by the ACLU on behalf of the League of Women Voters of PA and Lorraine Haw of Philadelphia. 

A preliminary injunction was issued on October 30 which directed Acting Secretary Boockvar to delay certification of the votes cast on November 5th until the lawsuit was decided. Judge Ellen Ceisler, who is presiding over the case, wrote the following statement regarding whether or not Marsy’s Law constitutes multiple amendments: 

“This Court concludes that Petitioners have raised substantial questions as to the constitutionality of the Proposed Amendment in terms of both a violation of Article XI, Section 1’s separate vote requirement, and its facial impact on other articles and sections of the Constitution. …The Proposed Amendment addresses a wide range of subject matters including bail, discovery, due process, restitution, the right to privacy, and evidence control, all under the auspices of connecting them to victims’ rights (www.shorturl. at/lvILZ).” 

Marsy’s Laws have been passed in 12 states as of 2018, with PA’s vote pending, and Wisconsin to vote next in 2020. Montana and Kentucky, which passed Marsy’s Laws in 2016 and 2018 respectively, have both since overturned the laws. Montana’s decision to overturn was founded on the same question the PA Supreme Court was asked to consider. 

Meanwhile, Marsy’s Law for All and affiliate groups in every state yet to pass Marsy’s Law have spent millions lobbying for these constitutional amendments. Henry Nicholas III, the billionaire brother of the law’s namesake, Marsalee “Marsy” Nicholas, founded the movement under the guise of equitable treatment of victims and their families under the law, but seems to find existing state laws, such as the 1998 Crime Victims’ Act, which endows most of the rights Marsy’s Law would seek to provide, inadequate. His foundation has been wildly successful, gaining rapid momentum across the nation by appealing to Americans’ compassion and sympathies, as well as our obsession with retributive justice. 

Is it noteworthy that Nicholas himself was arrested in Las Vegas in the fall of 2018 on drug trafficking charges? Hopefully, in that position he took some time to reflect on the reason defendants’ rights are emphasized and protected with such vigor: when facing the state in court, the state has the power to deprive an individual of their life, liberties, and freedom. In addition, and perhaps of even greater importance, we are granted the right to be presumed innocent unless and until conviction in a court of law, following due process. Marsy’s Laws disregard these founding principles of our nation, and will likely prove to be easily misused. 

Cheryl Bauer is a member of the NewPeople editorial collective.

NewPeople Newspaper VOL. 40 No. 10. December/January, 2019/2020. All rights reserved.

Categories: News

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