Carol Ann Conboy and Buzz Scherr: An alternative to Marsy’s Law

For the Monitor
Thursday, February 08, 2018

Victims’ advocates have proposed an amendment to New Hampshire’s constitution, CACR 22, also known as “Marsy’s Law.”

We propose an alternative amendment that would provide: “A victim of crime has the right to be treated with fairness and respect for the victim’s safety, dignity and privacy.”

Both proposals recognize that all crime victims deserve to be treated by the criminal justice system with respect and dignity. There is no dispute that the ultimate goal of the system is to determine whether an accused is guilty of commission of a crime and, if so, to hold that person accountable. Critical to achieving this goal is the fair and respectful treatment of victims.

But the two proposals differ significantly in their approaches to constitutional guarantees. Our proposal reflects New Hampshire’s historic approach to embedding individual protections in our state constitution. By design, our constitution is a minimalist document intended to lay out a set of operating principles that leaves implementation to the Legislature.

Unlike our proposal, CACR 22 copies the 395 words of a model law, parts of which have been adopted by other states, without making a single word change to reflect New Hampshire’s constitution and existing statutes addressing victims’ rights. The approach taken in CACR 22 is unlike any approach New Hampshire has ever taken regarding constitutional guarantees.

For example, Part I, the Bill of Rights, where the 395-word CACR 22 amendment would be located, has only five articles that broadly address rights and responsibilities in our criminal justice system. The longest article, Article 15, has only 221 words that briefly articulate at least nine foundational constitutional principles. None of the other articles has more than 135 words.

Thus, each of the five criminal justice articles sets forth only broad foundational principles; reserved to the Legislature is the formulation of implementing details. Those details are set forth in our comprehensive criminal code.

Our Legislature’s core responsibility centers on its power to adopt statutes that activate the basic tenets of our constitution. Critical to the Legislature’s work is the ability to amend statutes as time and experience warrant. To constitutionalize detailed procedures relating to any constitutional right, including victims’ rights, would strip the Legislature of this important power. As the people’s representatives, our legislators must have the ability to continually review the viability of any particular procedures implementing constitutional rights. Such procedures should not be “frozen” in our constitution.

The choice is not limited to adopting CACR 22 or doing nothing. Rather, the common-sense solution is to state the foundational principles of victims’ rights in a constitutional amendment that is consistent with our Founding Fathers’ approach to constitutional principles. It is for the Legislature to amend our victims’ rights statute, as it deems necessary and proper.

The foundational principle that is encapsulated in our alternative proposal is straightforward and clear: “A victim of crime has the right to be treated with fairness and respect for the victim’s safety, dignity and privacy.”

(Carol Ann Conboy is a retired New Hampshire Supreme Court justice. Albert “Buzz” Scherr is a professor at the University of New Hampshire School of Law.)