On Wednesday, Commonwealth Court Judge Ellen Ceisler ruled that voters will be able to vote on the Marsy’s Law ballot initiative on Nov. 5.  But election officials cannot count the votes while the initiative’s proposed amendment to the state constitution is under legal challenge.

The proposed amendment to the PA Constitution asks voter to decide:

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?

No one in this story is opposed to ensuring that crime victims have rights in criminal proceedings against the accused.  In fact, Pennsylvania currently has a Crime Victims Act.  The ACLU and the League of Women Voters have raised objections to this proposed amendment to the state constitution on two grounds:

  • Possible violation of laws that limit the number of sections in the state constitution that would be affected by the new amendment.
  • Vague language in the amendment that, for example, does not guide judges in how to balance the right of the accused to see all evidence in the case (a right guaranteed in all U.S. law) and the newly asserted right of victims to “refuse discovery requests.”

 The ACLU argued that the Pennsylvania amendment proposal could possibly affect eight different sections of the state constitution, which exceeds the rules limiting how many sections can be affected.  As well, plaintiffs’ lawyers argued that the combination of so many rights into one “omnibus” ballot initiative forced citizens to vote for features they do not support in order to vote for features they do support.

In her ruling, Ceisler wrote that “every stage of the criminal proceedings,” from bail hearings and trials to sentencing and pardon reviews, would be “put into doubt” by the ballot initiatives provisions.  She went on to say, “It is clear that the proposed amendment . . . will immediately, profoundly, and irreparably impact individuals who are accused of crimes, the criminal justice system as a whole, and most likely victims as well.”

Television ads supporting the amendment focus on poor implementation of the current Crime Victims Act.  Implementation problems are due to inadequate state funding to assist, protect, and inform victims.  The proposed constitutional amendment offers no additional funding to carry out the goals of the movement to establish and protect victims’ rights.

This week’s reporting on the case did not explain why the state legislature failed to hold hearings on the amendment where these issues could have been discussed and the merits of a constitutional amendment versus strengthening existing law debated. 

The case will now make its way through the state courts, and that process could take years. In the meantime, the Crime Victims Act will still be valid and state legislators could strengthen it by voting additional funds to ensure the goals of the law are carried out.

Proponents will argue that “no rapist should have more rights than the victim. No murderer should be afforded more rights than the victim’s family. Marsy’s Law would ensure that victims have the same co-equal rights as the accused and convicted – nothing more and nothing less.”

Opponents of the amendment as currently worded will argue that victims are relying on the state to prosecute accused individuals while the accused are facing the power of the state to deprive them of liberty, property, and even life. The U.S. Bill of Rights protects the rights of the accused because of the dangers of government overreach. Describing victims and the accused as ‘co-equal’ in the courts leaves out of the equation the state’s real and considerable power to prosecute the accused.

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