Wisconsinites should vote no on this perverse, dishonestly worded ballot question.
Illustration by M.Rose Sweetnam: “Miss Forward stands in front of a broken sky. She is blindfolded and holding a scale of justice. Peeking through the broken sky is the image of prison bars.”
Marsy’s Law, a nationwide push for “victims’ rights” amendments in state constitutions, is the kind of policymaking effort that has pernicious fiction baked right into it. To read the misleading word salad of the Marsy’s Law ballot question Wisconsin voters will decide on April 7, or the wording of the amendments a “yes” vote would make to our state constitution, you’d think that people accused of crimes in Wisconsin are somehow over-defended. You’d think that prosecutors were scraping by on impossibly low levels of funding while public defenders enjoyed the full cooperation of cops and routinely pushed the legal and ethical envelope without consequences. You’d think that criminal defendants and their attorneys were constantly dragging victims and their families through lengthy trials, rather than overwhelmingly opting for plea bargains. You’d think what passes for “due process” in a criminal jury trial placed the defense at an advantage, rather than increasing the odds that the defendant will get a tougher sentence or even face more serious charges—what lawyers call the “trial tax.” You’d think that our systems of prosecution, policing, and incarceration were somehow not reckless or vindictive enough.
Wisconsin voters should not only vote no on the ballot question, but also demand accountability from public figures and organizations in Wisconsin who have supported the measure. That includes Democratic and Republic state legislators, Democratic Wisconsin Attorney General Josh Kaul, dozens of sheriffs and DAs, and organizations that otherwise do righteous work, including the Wisconsin Coalition Against Sexual Assault and the Wisconsin Nurses Association. Something incredibly weird has to be going on when such organizations make common cause with entities as profoundly vile as police unions.
I agree with Marsy’s Law proponents that if you or someone close to you is the victim of a crime, you should be able to expect fair, compassionate treatment. You should be able to expect that the officials working on your case keep you posted and hear your concerns. If someone who’s harmed you (or someone the state accuses of harming you, who as we’ve established may or may not be the right person) is being released back into society, then of course you should get that information right away. We could address all these problems without the overreach of Marsy’s Law.
The impulse to stick up for victims comes from a place of very real trauma and pain. The justice system has a shameful history of mistreating sexual assault victims in particular, and of leaving domestic violence victims exposed to escalating abuse that often ends in murder. But I worry that Marsy’s Law takes us further down the path of carceral feminism, conflating the interests of vulnerable people with the interests of predatory state actors. It takes all that pain and twists it into a very misleading narrative.
The constitutional amendment could set off a tangle of screwy legal consequences, as Matt Rothschild detailed in a recent Wisconsin Examiner column. It flies in the face of the federal Constitutional rights of the accused (despite proponents’ disingenuous claims to the contrary). It can allow governments, cops, and corporations to claim “rights” under an absurd “victim” status. Most importantly, it blatantly invites cops and prosecutors to hide evidence from the defense, by creating the following “right” “for” victims: “to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.”
Proponents claim that this provision of the Marsy’s Law amendment simply enshrines in the state constitution something that already exists in state statutes. (With Marsy’s Law, we often get into that weird loop where proponents say it doesn’t change all that much, but that it’s also very necessary for some reason.) Wisconsin law does state that “Except as provided in s. 967.04, the defendant or his or her attorney may not compel a victim of a crime to submit to a pretrial interview or deposition.” The Marsy’s Law language about “other discovery request” would seem to broaden that at least a little. Also, whether these protections are in state statutes or the state constitution, they plainly violate the Sixth Amendment of the U.S Constitution, which gives a defendant a right “to have compulsory process for obtaining witnesses in his favor.” Leave this troublesome language in statute for the Wisconsin Legislature to clean up, in case it’s ever controlled by a legitimate majority capable of making good policy.
Cops and prosecutors already lie and withhold evidence all the time, despite the fact that these behaviors are illegal and violate their own purported rules and ethics. Imagine how much worse it’ll get if we literally enshrine an invitation to withhold evidence in the state constitution. Imagine what it’s like for the victim of a crime, by the way, if the cops have an even easier time railroading the wrong suspect to prison. When and if the courts start to try and fix the wrongful conviction and possibly try a new suspect, how will the new “rights” Marsy’s Law creates make it any easier for the victim to go through it all over again? How empty will those “victims’ rights” feel when the actual perpetrator has escaped accountability for god knows how long? This isn’t a hypothetical. Wrongful prosecutions, wrongful convictions, and eventual exonerations happen, and they happen here.
In a country where the carceral system functions as a dynamo of systemic racism and a daily threat to human rights, Marsy’s Law advocates have shamelessly helped themselves to the language of “equal rights.” They use the URL equalrightsforwi.org for their Wisconsin campaign website, and constantly claim that their efforts are all about making sure victims aren’t “silenced” and that their rights are valued just as much as the rights of the accused. It’s right there in the dishonest, illegitimate wording of the ballot question, which proposes that “the rights of crime victims be protected with equal force to the protections afforded the accused.” Nevermind that the families and loved ones of the accused often suffer terribly too, through no fault of their own. Do the Marsy’s Law people care about them?
If the campaign for Marsy’s Law were really serious about making it easier for crime victims to navigate the current criminal justice system, it would focus on improving the health of the criminal justice process on the whole, putting the “victim rights” piece into a systemic context. That would mean better funding for state crime labs, more public defenders to share the caseload, funding for more of the services and resources that would actually help victims, lifting our horrifyingly low caps on compensation for exonerees, creating tougher systems of accountability for police and prosecutorial misconduct, increased public funding for rape crisis centers and domestic-violence organizations, increased access to medical and mental-health services for victims.
Marsy’s Law does none of these things on a policy level. At best, it’s a cynical piece of emotional posturing. At worst, it’s an invitation to even more flagrant abuse. True, the Marsy’s Law campaign as an organization has helped out with charity fundraisers for organizations that support victims, but if this “movement” really wants to support victims at a systemic level, shouldn’t it be pushing back on a paradigm that makes that support services so dependent on private charity? How can you build “victims’ rights” into the system if you don’t build the means to pay to help said victims into the system? Shouldn’t tech billionaire Henry Nicholas III, who funds the Marsy’s Law campaign, put his money into funding support services, or even electoral and lobbying efforts to push for better funding at the state and federal level?
Nicholas was inspired to launch the Marsy’s Law project after its namesake, his sister, was murdered in 1983 by an ex-boyfriend, Kerry Michael Conley. Nicholas frequently recounts how after the killing, his mother went to the grocery store only to bump into Conley, who’d been released on bail without her knowledge. Conley was eventually convicted of second-degree murder and was sentenced to 17 years to life. He died in prison in 2007.
I sympathize deeply with the Nicholas family’s loss. The violent, sudden, senseless death of a sibling is something you live with forever. I know something about that. I would never presume to tell another grieving person how to handle their grief. But I am skeptical of how that grief gets used and manipulated in the political arena, of what the state will do under the cloud of other people’s pain.
Let me draw an imperfect parallel: I’ve lost people I loved and cared about to suicide, and of course I want to see policymakers take action on suicide prevention and mental health. But if they want to take up that mantle, I’m not going to be immediately supportive and grateful. If anything, I’m going to be aggressively skeptical and make them stand up to a high degree of scrutiny—precisely because it’s so complex and so important to get it right, and because I’ve lived with it long enough to value concrete action over gestures of sympathy, or politicians trying to spruce up their brands with a spritz of “awareness” about mental health. When Wisconsin Assembly Speaker Robin Vos launched a suicide-prevention task force in the legislature, I took a long hard look and decided that, like most things involving Vos, it was an obscene sham. Since forming the task force, Vos has never missed an opportunity to play cheap politics with the issue, dismissing the undeniable connection between suicide and guns, and has blithely ignored how Medicaid expansion might help in all this. What good the task force has done is pretty watered-down by Republican cheapness. Democractic legislators and Governor Tony Evers largely go along with it because it’s the best we’re going to get. For instance, a much-touted bill supporting peer-to-peer suicide prevention programs in Wisconsin high schools creates only $250,000 in funding for those programs. For a state gambling billions of dollars on the ever more slippery Foxconn project, keeping teenagers from killing themselves or developing life-long mental health problems during a crucial, volatile period of development is worth a quarter-million dollars. One Democractic member of the task force, Milwaukee Assembly Rep. Jonathan Brostoff, has rightly criticized the task force for its self-congratulation, its failure to put suicide in the bigger picture, and its failure to challenge right-wing articles of faith. Good for him. It’s a fucking joke, and little comfort to those of us who want to spare others the horrors of suicide loss.
Similarly, Marsy’s Law, in its ultimate effects and its politics, isn’t for victims. It’s for people who don’t have the patience, moral courage, or emotional maturity to live in a free society that dispenses justice through a fair process. It’s for people who’ve never really valued the rights of the accused—hell, people who actively resent the very concept—because they see “criminals” as a class of others that must be subjugated or destroyed. They don’t care that the rights of the accused are meant to protect all of us from some of the most abusive and unaccountable actors in our government, because they can’t imagine being on the other side of the equation.
That’s America for you, but it’s too bad. Crime victims and the accused actually share a common interest in making the system more transparent and accountable. The communities that suffer the most from violent crime are often the ones that bear the brunt of mass incarceration and police violence. The traits that make the justice system feel impersonal and daunting to victims are often the same that make it so opaque and dehumanizing to the accused. The people pushing for Marsy’s Law don’t want you to see those links. In short: It’s the impunity, dummy.
But the most cruel and insidious thing about Marsy’s Law is that it reinforces the bedrock assumptions of a system that we should be dismantling: That cops and prosecutors are actually here to make us safe or defend our rights. That state violence can repair what transgressions between individuals have broken. That the best way to hold offenders accountable is to send them through a system that’s almost guaranteed to return them to society more broken and dysfunctional than before. That we can trust our justice system to prosecute the right people and mete out the appropriate punishment. That a system that is dehumanizing at its core can quickly be reformed into being more gentle and compassionate.
Cops, prosecutors, and prison systems have the power to kill people without due process and to warehouse people for years on end under squalid, isolated conditions. If they cared all that much about the rights and dignity of crime victims, they’d use some of that immense, virtually unlimited power to do something about it. At least some of the proponents of Marsy’s Law seem to get that there are deep-rooted systemic issues that make our justice system harder for crime victims to deal with than it should be. But why, then, do they propose to solve the problem by more or less giving the system a longer leash? Why would they trust police and prosecutors to follow a few new constitutional rules, when they already violate provisions of state and federal constitutions daily in the name of public safety?
Marsy’s Law is a profoundly violent and dangerous thing wrapped up in the language of safety and compassion. At a time when more Americans across the political spectrum are starting to grasp that our justice system should at the very least be extensively reformed, Marsy’s Law asks us that we entrench that system more deeply. Please don’t fall for it.