“Marsy’s Law” and crime victims’ rights

I’ve got a new piece at Real Clear Policy on the push to constitutionalize crime victims’ rights (“Marsy’s Law”). Excerpt:

Unfortunately, most versions of Marsy’s Law so far impinge on legitimate rights of criminal defendants, constitutionalize issues better left to resolution by judges or lawmakers, and create ongoing tension with the presumption of innocence. …

Interests of evenhanded justice counsel against letting patterns of conviction and punishment depend too much on whether the complainant in any particular case is angry, energetic, articulate, or for that matter present at all. The function of criminal prosecution cannot be to validate the victim’s suffering. It must instead be to ascertain the truth as best as possible and impartially carry out the legal consequences on the guilty.

In short, there are very good reasons why the Framers included in the Constitution and Bill of Rights many protections for criminal defendants, but relatively few for victims. We forget that wisdom at our peril.


  • Perhaps we should ask why we have Marsy’s Law (and all the other laws). I tend to agree that victims’ rights laws can be misguided and illiberal. But they respond to real tragedies and the fact that the legal bureaucracy often doesn’t seem to care. We have Megan’s Law because a sick (and yes I mean that) bureaucracy put a child sex offender in a neighborhood with kids and didn’t even warn the people. Megan Kanka was murdered by Jesse Timmedequas, but she was also murdered by an indifferent bureaucracy. Look at Jeffrey Epstein. Federal prosecutors, you know, the very people who are not supposed to be hacks and are supposed to have the highest professionalism and commitment to the law, blew off the law. And they still have their law licenses and one is a cabinet secretary.

    Looking down our collective noses at the great unwashed who don’t understand the legal niceties (some of which, by the way, are made up) really isn’t justified given that the academy often ignores the quiet pain of those who are crime victims.

  • And wasn’t there an article in the NYTimes about defense counsel handling over victim/witness info to criminal defendants?

    And then there’s this case:


  • So far as I can see, the Indiana case link cited by SPO above is an example of how criminal defense lawyers who improperly transmit sensitive information to defendants are already open to 1) professional disciplinary sanctions as well as 2) sanctions from the judge in the case at hand. Should those two avenues of recourse be insufficient to keep most lawyers in line — a big assumption — lawmakers could add further statutory penalties or causes of action, without constitutionalizing the issue for all time.

    I am struggling to understand the earlier set points except as, “Yes, these laws are often quite bad point by point, but since they’re a way to send a message that we despise elites, maybe they’re worth our respect for that reason.”

    • “So far as I can see, the Indiana case link cited by SPO above is an example of how criminal defense lawyers who improperly transmit sensitive information to defendants are already open ”

      How about on top of professional and court sanctions, felony criminal charges for the defense lawyers who do this kind of stuff. Don’t constitutionalize it, criminalize it.

    • I’ll have more later (subject to your posting rules, of course).

      With respect to the Indiana case (appalling result, btw), the professional discipline for breaching the duty of confidentiality that got a client killed by the very person to whom the information was passed: public reprimand. The august Indiana Supreme Court, of course, said that the lawyer didn’t have a duty to mitigate the harm of his breach of his duty of confidentiality, which would have been accomplished by warning his client that some guy (another client) was going to kill him (the information provided by the attorney helped the murderer).

      Any ordinary person of common sense would look at this result and rightly think that the decision is entirely wrong and motivated by some degree of lawyers protecting lawyers. The upshot, of course, is that stuff like this calls into question the ability of the elites to get it right. And what happens when that happens? People stop listening to elites and you get laws that aren’t “sophisticated” etc. My point is cause-effect.

      We can look at things like Marsy’s law as silly and misguided—but there’s a reason that the elites aren’t trusted to get it right on their own.

      And what does it say about legal elites when they can blow off statutes that are constitutional relating to victims’ rights with impunity? I am referring to the Jeffrey Epstein case. The rest of us don’t get to do that.

  • “Perhaps we should ask why we have Marsy’s Law (and all the other laws). I tend to agree that victims’ rights laws can be misguided and illiberal. But they respond to real tragedies and the fact that the legal bureaucracy often doesn’t seem to care.”

    That’s what I originally wrote, and I don’t think that it’s been knocked down. This country has means to express the democratic will, and Msrsy’s Law a just such an expression. Of course, lawyers and the sophisticates can look at these laws and cast aspersions. And yes, laws like that undermine our freedoms, and there are lots of irresponsible legislators who jump on the bandwagon.

    But indifferent bureaucracies and elites making decisions for society under the guise of the “rule of law” (i.e., a court said so, thus merging the concepts of power with law) is a threat to our freedom. And elites should know better. But they do not. Anyone with an ounce of common sense could look at the Indiana Supreme Court decision I linked above and see that something is rotten in Denmark. I mean really, the lawyer breached a duty of confidentiality to a client, but then had no duty to mitigate it? Nonsense, and evidence of a rigged game.

    And, to bring up a past thread—what of the Moonlight Fire case? Once again, anyone with an ounce of sense knows that the government’s lying to coerce a settlement should reopen a settlement. I mean really, the “Well, you knew they were kinda shady, so you kinda had your eyes open, so too bad so sad” isn’t law. It’s just raw power. And the US Supreme Court tolerated this state of affairs. Given that, sorry John, don’t wanna hear your cri de coeur about there being just judges. Read DC v. Wesby and tell me that’s true.

    I will not say that the legal system is rotten to the core. It’s not. But it is very tolerant of its own errors and often acts in self-protection mode. It is generally insulated from scrutiny, and that causes things like arrogance and indifference. Mr. Olson has railed against guardianship abuse. But where is the blame affixed on those who run the court system and the bar (i.e., the supreme court’s of each state)? Nowhere. But Mr. Olson pens a one-sided post about the evils of the democratic process mucking things up? The democratic process is responding to something. Part of that is the failure of the elites.

  • If you hold your citizens responsible for knowing the law, no matter how hidden, shouldn’t the law enforcement community be held to at least the same standard? After all, they are citizens first, and law enforcement second. Yet unless there is some case directly on point prior to their action or inaction, they get a pass? Doesn’t that mean the first person to be prosecuted under any law should also get a pass?

    • Cecil, that is an interesting question, and I think the answer is, “It depends.” A Cook County Judge is asking the question about unequal enforcement regarding the Jussie Smollet case.

      Illinois taxpayers should be asking the same question about Governor Pritzer, Pritzer used some chicanery to get his property taxes improperly lowered. That constitutes gross income to him from an income tax standpoint. He obviously wouldn’t have reported that. Now that the issue has been spilled all over the news, why should ordinary citizens have to pay their taxes when the Illinois state taxation authorities are letting the governor get over?

      The answer is unsatisfactory—power and necessity. But, the fact that someone isn’t a governor isn’t a rational basis upon which to devote tax collecting resources, which means that all of those who aren’t governments have Equal Protection claims that are harder to dismiss than one would think.

  • ” Yet unless there is some case directly on point prior to their action or inaction, they get a pass?”

    It’s not just QI. If you get arrested by a cop for something that’s not actually illegal, you can’t sue for false arrest even if you can get past QI, because SCOTUS has explicitly ruled that it’s unreasonable to expect a Law Enforcement Officer to know the law.

    WTF? How are they supposed to enforce the law if they don’t know the law?

    You’d think that Knowing the law was actually part of their job.

  • Not to sound like a complete scold, but what does anyone think will happen to the lawyers and judges involved with this abuse:


    Nothing. The Kentucky Supreme Court won’t pull tickets and certainly won’t discipline the judges—nor will, of course, any of the DCFS workers be prosecuted for kidnapping. .

    Somehow I doubt we’ll see commentators using the same acidic commentary that gets used when the hoi palloi interfere with the sacred charge of the courts to be free from interference by grubby legislators who pass things like Megan’s law or Marsy’s law.

    • SPO’s “the elitist commentators write against Marsy’s Law but I’ll bet they won’t write as pointedly against CPS child-snatching, the effete bastards” would be a bit more coherent if he acknowledged that the latest outrageous Kentucky story was exposed by Reason, the *very same publication* that published the long, detailed piece on the problems with Marsy’s Law that I used as the basis for my RCP column. Or that this very site, Overlawyered, whose supposed worthless elitism and bad class background he keeps hinting at, has been publishing acid items about CPS child-snatching for pretty much its entire 20-year run.

      I don’t know what dramas about elite commentators vs. the hoi polloi SPO is working through in his mind, but they seem at times only distantly related to the content posted on this site.

      • A couple quick thoughts:

        (1) Of course, most of my commentary dealt with why we have things like Marsy’s law in the first place, and I’ve noted that these types of laws are problematic. Criticizing Marsy’s law without noting the forces that generate such laws (failed elites coupled with demagoguery and ignorance) is like some liberals criticizing instances of harsh mandatory minimums without noting the reasos we have mandatory minimums, namely, that judges as a whole couldn’t be trusted with public safety and neither could parole boards. PLRA is another example of the lack of trust in judges. .

        (2) I don’t disagree that this blog posts acid commentary on various CPS/guardianship nastiness. I think readers absolutely enjoy your commentary. But. And it’s a big but, the criticism stops well short of putting a serious share of the blame on the precious state supreme courts that tolerate some of these abuses that are signed off on by judges. The court system, on a massive scale, tolerates failure, abuse and injustice. This tolerance is evident to anyone with a modicum of common sense. Yet that bigger picture escapes notice of the academy. I know you won’t answer it, and of course that’s fine. But I read In re Goebel, given it’s obvious flaws, and I call into question the very fitness of those who made the decision. You stop well short of that–and that’s fine–but that doesn’t stop a fusillade against the unwashed legislators who muck up the works with things like Marsy’s law.

        Trump election—one of the most shocking things inner history–is largely characterized as a revolt of the commoners vs. the elites. This revolt is not limited to the presidential ballot box.