This is an opinion piece that originally ran in the Union Leader on Wednesday, January 24, 2018. 

Over the past week, Marsy’s Law has burst onto the scenes in New Hampshire. Borne out of events in California, the proposal to add victims’ rights to our state constitution offers an opportunity to discuss victims’ rights and how best we, as the Granite State, can protect them while protecting due process and other constitutional rights of the accused.

A constitutional amendment, if enacted, is not flexible. It’s incredibly challenging to amend when problems arise with implementation. Meaning, if we are going to skip over amending our statutory victims’ bill of rights and instead pursue a constitutional amendment, we should be doing everything we can to ensure it is as constitutionally sound as possible before we lock in the language.

As the Marsy’s Law constitutional amendment (CACR 22) gets taken up by the New Hampshire Senate, it should not be presented as an up or down issue, but as an opportunity for a substantive discussion about the pros and cons of a constitutional amendment and the specific language. The proposed language is cut and pasted from a national model law. By revising it, we can both reinforce victims’ rights and uphold key constitutional principles like the presumption of innocence.

Only five states currently have in their constitutions what is known as Marsy’s Law, but the specific language varies state to state. Roughly 30 other states have some reference to victims’ rights in their constitution, but not in the specific formulation of Marsy’s Law. This reinforces that there is no one-size-fits-all solution. States have flexibility in how they enshrine victims’ rights.

The American Civil Liberties Union of New Hampshire (ACLU-NH) supports victims’ rights and the discussion about whether and how to add them to our constitution. Our goal is to ensure that the legislative discussion about CACR 22 includes consideration for alternative language, the impact of Marsy’s Law in other states, and ensures that any amendment that ends up on the ballot is as constitutionally sound as possible.

Were Marsy’s Law proposed as a statute instead of a constitutional amendment, would it violate the New Hampshire or US Constitutions? We believe the answer is “yes.” Why then would we add such language to our state constitution? Why not consider alternative language that is constitutionally sound?

The discussion around CACR 22 is also an opportunity to learn from other states’ experiences. For instance, in North Dakota, where Marsy’s Law was enacted in April 2017, bond hearings are already taking longer and requiring more time to schedule. Due in part to such delays, Marsy’s Law is estimated to cost North Dakota roughly $2 million per year to implement.

South Dakota has experienced so many consequences from its version of Marsy’s Law that the GOP House Speaker intends to introduce legislative changes this year, and is considering giving voters an opportunity to revoke it.

In California, the law has increased victim participation, but it has also nearly doubled the time set by parole boards between parole hearings. This may be in part because “the parole board may be feeling pressure to use Marsy’s Law as a sword or face the ire of powerful victims’ rights organizations,” as one California analysis opined. We should consider these implications as we discuss how best to ensure victims’ rights in New Hampshire.

Another key consideration is legal clarity. As worded, CACR 22 includes rights that conflict with an accused’s constitutional rights, but provides no guidance for how judges should resolve such conflicts. What should a judge do when a victim’s right to refuse discovery and depositions runs up against a defendant’s constitutional right to evidence that could prove their innocence? In the absence of clarity, we risk inconsistencies and injustice.

The victims’ bill of rights already in New Hampshire statute addresses these concerns by explicitly stating that victims’ rights shall be enforced to the extent they “are not inconsistent with the constitutional or statutory rights of the accused.” This language was specifically sought by the New Hampshire Attorney General’s Office when our statutory bill of rights was enacted in the 1990s. Many of the concerns with CACR 22 could be addressed by adding similar language.

The ACLU-NH encourages legislators to use CACR 22 as an opportunity to have an in-depth discussion about how we best protect victims’ rights in our state while upholding the constitutional rights of the accused. The current version of CACR 22 is a start to this discussion, and we hope all stakeholders will join in improving the language.

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