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Victims’ Rights Laws a Threat to Due Process

“Marsy’s Law,” an effort to afford victims equal rights as those accused, might seem like a good idea at first blush, but a deeper look shows it is poorly drafted and actually threatens existing constitutional safeguards.

Victims’ rights and defendants’ rights are not the same and cannot be “equal.” Victims’ rights are against another individual, such as restitution, which Marsy’s Law promotes. In stark contrast, defendants’ rights are enforced against the government, to serve as checks against government abuse. To compare victims’ rights to defendants’ rights is to compare two very different things with different goals.

The problem is that Marsy’s Law, some say, could actually expand the government’s power against the accused, undermining the bedrock principle of the presumption of innocence. Some states are slowly coming to this realization. In 2016, South Dakota adopted Marsy’s Law and amended its Constitution. Now the state is trying to pass another constitutional amendment to fix the problems created by the language of Marsy’s Law.

New Hampshire lawmakers voted down Marsy’s Law by a vote of 284 to 51, and Idaho lawmakers voted it down twice.

To oppose Marsy’s Law is not to oppose victims’ rights, though. While seemingly well-meaning, amending a constitution, unlike a statute, requires yet another amendment to fix it. No easy task.

States can add laws to achieve the idea of Marsy’s Law—and most have. The ACLU is pushing for states to go that route instead of adopting Marsy’s Law as a constitutional amendment. 



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