Editorial: Adopting Marsy’s Law would be a mistake

  • Henry Nicholas, for whose murdered younger sister Marsy's Law is named, speaks outside the Ohio Secretary of State's Office in Columbus, Ohio, on Thursday, June 22, 2017. AP

Sunday, February 25, 2018

The national campaign to add Marsy’s Law, victims’ rights legislation crafted in California, to New Hampshire’s constitution drew instant and near unanimous support because who wouldn’t want to provide aid and comfort to crime victims.

But adopting the proposed constitutional amendment, CACR 22, would be a mistake, one that could have a host of unintended consequences.

New Hampshire is one of 15 states that make no mention of victims’ rights – the right to be notified of the release of a victim’s assailant, for example – in its constitution. But it does have a comprehensive state law with a long list of victims’ rights. That law is not perfectly enforced for want of adequate funding, and it lacks penalties for failure to grant rights guaranteed a victim, but those are legislative, not constitutional problems.

The proposed law is named for Marsalee Nicholas, a young woman killed by an ex-boyfriend who was out on bail when the victim’s mother and brother encountered him in a grocery store. They had not been notified of his release. That brother became a billionaire, and he is the prime source of funding behind the Marsy’s Law campaign.

The law’s well-meaning proponents say they want equal rights for crime victims. They are comparing apples to oranges. The state and federal constitutions grant rights to those accused of a crime because the government has the power to take their liberty, property and even their life. The government can’t do that to crime victims. It does have the responsibility to treat victims with courtesy and respect, and do what it can to see that their offender compensates them for the harm suffered.

Marsy’s Law proponents have a point when they argue that the constitutional rights of the accused trump the rights afforded crime victims under state law when the two clash. That problem could be remedied with the addition of the constitutional amendment suggested by UNH law professor Albert Scherr and retired state Supreme Court justice Carol Ann Conboy. That amendment simply states that “a victim of crime has the right to be treated with fairness and respect for the victim’s safety, dignity and privacy.”

Marsy’s Law, in contrast, is a one-sided 345-word addition that fails to address potential conflicts between the rights afforded victims under it and the rights of the accused. The amendment does not clarify when someone officially becomes a victim. In court proceedings, until a defendant is convicted of a crime, his or her accuser is an “alleged victim.” Granting constitutional rights to an alleged victim could compromise the right of the accused to be considered innocent until proven guilty.

The amendment guarantees a victim’s constitutional right to be given notice of and be present at all proceedings involving the accused. It also guarantees them “reasonable” protection from the accused, meaning security provided at the expense, we believe, of local government.

With thousands of crimes committed each year, many with multiple proceedings, notification would impose a costly unfunded mandate on local and county taxpayers. The cost of providing protection could also become considerable. Amendment proponents downplay the potential expense by saying only those who opt-in or request notice or protection would enjoy those rights. It’s safe to say, however, that the great majority of victims of crimes both great and small will want notice of proceedings that could potentially impact them. And most victims who fear physical harm will demand the right to reasonable protection.

Many things could go amiss if New Hampshire adopts the Marsy’s Law amendment, and they would be exceedingly difficult to fix. Amending the constitution requires the vote of 60 percent of the House and Senate and a two-thirds vote of the electorate. If an amendment is adopted to give constitutional status to victims’ rights, the language of that amendment should be plain, simple and crafted locally to meet the state’s needs.