Can 22 of New Hampshire’s 24 senators be wrong? What if you add in Republican and Democratic New Hampshire House leadership? I suggest the answer to these questions is yes. These legislators are sponsoring CACR 22, a proposal to amend New Hampshire’s constitution: “relating to rights for crime victims. Providing that crime victims shall be afforded constitutional rights.”
What could possibly be wrong with adding this language to our constitution? There is a lot that is wrong with this proposal, of which I will note only two.
Currently, New Hampshire law states: “To the extent that they can be reasonably guaranteed by the courts and by law enforcement and correctional authorities, and are not inconsistent with the constitutional or statutory rights of the accused, crime victims are entitled to the following rights.” There follows a list of almost two-dozen rights, including the right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process; to attend trial and all other court proceedings the accused has the right to attend; to confer with the prosecution and to be consulted about the disposition of the case, including plea bargaining; to be informed about available resources, financial assistance and social services; of confidentiality of personal information; to have input in the probation pre-sentence report impact statement; to appear and make a written or oral victim impact statement at the sentencing of the defendant or, in the case of a plea bargain, prior to any plea bargain agreement.
Every one of these rights recognizes certain basic principles, beginning with the right to be presumed innocent until proven guilty. Every one of the rights now guaranteed under New Hampshire law recognizes constitutional and statutory rights of the accused, and the difference between pre-trial and post-trial procedures.
As important as victims’ rights are, they cannot and should not violate constitutionally protected rights of the accused. For example, the accused’s right to evidence known to the victim and uncovered through discovery is violated when the victim does not have to agree to participate in discovery. The right to refuse to participate is part of the proposed constitutional amendment. This stands in direct violation of due process rights guaranteed in the U.S. Constitution.
The proposed constitutional amendment states: “A victim is any person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act.”
Let’s say a delinquent act is shoplifting from Walmart. Using the doctrine that a corporation is a person, can Walmart, acting as a “person” be conceived to be a victim?
I don’t know which aphorism is more apt: “You can’t judge a book by its cover” or “Act in haste, repent at leisure.”
Amending the constitution of the state is a very serious matter. Supporting a feel-good proposal in an election year is not in the best interest of the legislators or the people of New Hampshire.
(Marjorie Smith, a Durham Democrat, represents Strafford District 6 in the New Hampshire House of Representatives.)