This November when you go to the polls or if you’ve requested an absentee ballot, you may see the following 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?

It sounds like voting yes is the decent thing to do. I mean, what kind of person wouldn’t want crime victims to be treated with fairness, respect, and dignity? Certainly not Pennsylvanians, because the law in this Commonwealth requires victims of crime to be treated with dignity, respect, courtesy, and sensitivity since 2007 when the General Assembly passed the Crime Victims Act. See, 18 P.S. § 11.201. So why amend the constitution? Why risk the inability to undo it, or require another statewide ballot initiative when it goes horribly awry, like it did within two years in South Dakota?

The Push For Marsy’s Law

Before addressing the constitutional issues with Marsy’s law, it is important for individuals to know that Marsy’s law was first offered and originally enacted in 2008 in California. For some of our readers, that should tell you everything you need to know about the proposal.

Regardless, it is important for everyone to be aware of the financial backing (i.e. Bloomberg money) pushing this proposal in Pennsylvania. As reflected in their September 24, 2019 filing with the Pennsylvania Department of State, they received $3,600,000.00 in cash donations and $2,400,000.00 in in-kind services for a total of $6,000,000.00. That’s right, six million dollars and between December 11, 2017 and March 31, 2019, they spent $848,960 on lobbying. Let that all sink in for a minute…

PA Constitutional Issues With How Marsy’s Law Was Proposed

HB 276, sponsored by Representative Sheryl Delozier (R), otherwise known as Marsy’s law, presents a panoply of constitutional problems, beginning with the way the ballot question was proposed and is being presented.

Article XI, § 1 of the Pennsylvania Constitution requires that the “proposed amendment or amendments shall be submitted to the qualified electors of the State” and that “[w]hen two or more amendments shall be submitted, they shall be voted on separately.” The question above does not meet either of those requirements. First, in the interest of complying with the Pennsylvania Election Code 25 P.S. § 3010(b), the question does not exceed 75 words. This brevity causes several of the new rights that would be created and their effects to be shortened or omitted from the ballot question. For reference, the question is 73 words, while the full amendment is nearly 500 words. The amendment would create fifteen new constitutional rights, where the ballot question only enumerates eight in brief form. The same circumstances cause the question to run afoul of the Pennsylvania Supreme Court’s requirement that the form of a ballot question “fairly, accurately and clearly apprize the voter of the question or issue to be voted on.” Stander v. Kelley, 433 Pa. 406, 418 (1969). Therefore, the ballot question fails to submit the proposed amendment to the qualified electors of the state, fails to allow them to vote on each amendment separately, and fails to meet the Pennsylvania Supreme Court’s fair, accurate, and clear apprisal standard.

The Unconstitutionality of Marsy’s Law Under the US and PA Constitutions

Once beyond the constitutional violations of the procedural way the amendment is being presented, we come to the ways the substance of the amendment will violate the Pennsylvania and United States Constitutions, if passed.

Who would be considered a victim of crime? If the proposed amendment passes, the term “victim” will include “any person against whom the criminal offense or delinquent act is committed or who is directly harmed by the commission of the offense or act.” Art. I, § 9.1(c)(proposed). However, the term “victim” will not include “the accused or a person whom the court finds would not act in the best interests of a deceased, incompetent, minor, or incapacitated victim.” The first thing to notice about this definition is that it applies to any criminal offense or delinquent act, even summary and misdemeanor offenses like disorderly conduct, vandalism or trespassing. The second thing to notice is that a crime is assumed to have been committed, someone is assumed to be the victim, and that the accused (i.e. defendant) is assumed to have committed the offense against the victim. Since the definition explicitly excludes the accused as someone who can be a victim, those assumptions are basically locked in for the duration of the case. Nothing like being guilty, until proven innocent….

In a criminal proceeding, the United States Constitution and the Pennsylvania Constitution each operate to protect the criminally accused from the immense power of the government, because the accused are at risk of losing liberty, property, and even life, and, most importantly, they are innocent until proven guilty. See, Coffin v. United

States, 156 U.S. 432 (1895)(holding that a criminal defendant is innocent until proven guilty). Among other constitutional rights, the accused has the right to confront the witnesses against him (U.S. Const. amend. XI), the right to due process of law (U.S. Const. amend. XIV), the right to a speedy trial (U.S. Cons. Amend. VI), the right to present a complete defense, and have the government disclose any exculpatory evidence it is aware of or possesses. Brady v. Maryland, 373 U.S. 83, 87 (1963). But under this amendment, where a victim would have competing rights, the limited protection the accused has against the awesome power of the government is further eroded.

As a victim would have the right to be heard in nearly any proceeding, it would follow then that a victim would have the right to request continuance or rescheduling of those hearings so that they may be heard, infringing on the accused’s right to a speedy trial. A victim would have the right to refuse a discovery request, inhibiting the accused’s right to confront the witnesses against him, present his best defense – especially if the victim is the only witness – or even preclude access to exculpatory (i.e. otherwise exonerating) evidence that a putative victim may hold. Consider an example; in 2006, three members of the Duke University lacrosse team were accused of violently raping a stripper. Over a year later, all of the charges were dropped and the players formally cleared of any wrongdoing in what turned out to be a case where a “victim” repeatedly made false allegations and a now-disbarred prosecutor concealed exculpatory evidence. One such piece of exculpatory evidence was the lack of DNA evidence connecting the players to the accuser, and the presence of DNA evidence disproving the accuser’s claim of the events. The prosecutor withheld the evidence, an action that contributed to his later disbarment, but an action that may be encouraged, or even required, if a “victim” chooses to exercise their right to refuse a discovery request. As the charges were dismissed prior to trial, can you imagine if Marsy’s law had been in place and limited the rights of the the Duke lacrosse players to fully investigate the blatantly false statements of the putative victim?

Additionally, under the amendment, the victim would have a right to proceedings free from unreasonable delay with a prompt and final conclusion of the case and any post-conviction proceedings. Two common occurrences in criminal cases that go to trial are 1. the accused’s waiver of his right to a speedy trial, in order to adequately prepare a defense and 2. the filing of appeals which can take years (if not a decade or more) to resolve. Under what would be newly enshrined constitutional rights, a victim’s right to a speedy trial may directly conflict with the accused’s decision to waive that right. Which of the dueling rights a court will choose to favor is an open question, because the proposed amendment does not address it.

Please read the full Public Notice of the proposed amendment here, and if it appears on the ballot this November, vote “No.”

The ACLU of Pennsylvania penned a Memo in Opposition to the Senate this June, which you can read here. They have also filed a lawsuit to block the question from reaching the ballot and to invalidate any votes that have been, or will be, cast for or against the question. Read more about the lawsuit and view the complaint here. A hearing on a preliminary injunction is currently scheduled for today, Wednesday, October 23, 2019, and the docket sheet regarding the ACLU’s action can be found here.

This article was written by Dillon Harris, a third year law student at Vermont Law, and was reviewed by Attorney Joshua Prince.