This is an opinion piece that originally ran in the Concord Monitor on Saturday, February 10, 2018 and was co-authored by Gilles Bissonnette, ACLU-NH Legal Director and Defense Attorney Mark Sisti.

On Tuesday, the New Hampshire Senate held a hearing on Marsy’s Law, a proposed amendment that would add certain victims’ rights to the New Hampshire Constitution. Throughout the hearing, proponents of the amendment argued for the need to provide victims “equal rights” to that of the accused in state criminal prosecutions.

This notion of “equal rights” is a seductive appeal to one’s sense of fairness. But it is a misnomer that misunderstands how the New Hampshire Constitution works. The state provides constitutional rights to the accused in a criminal proceeding because the state is attempting to deprive the accused – not the victim – of life, liberty and property.

New Hampshire’s founders were aware of the unparalleled power of state government to imprison or even execute its citizens. As a result, in 1784 – five years before the United States Constitution was even established – they provided in the New Hampshire Constitution a Bill of Rights for those accused of crimes as a necessary safeguard against government abuse. This New Hampshire Bill of Rights even, in some areas, provides the accused with greater rights than those provided under the federal Bill of Rights in the United States Constitution.

The rights of the accused enshrined in the New Hampshire Constitution’s Bill of Rights, for example, protect everyone against self-incrimination, violations of due process, unreasonable searches and seizures, and double jeopardy. One of these most fundamental rights is also the presumption of innocence.

At the time these rights were enacted in the New Hampshire Constitution, and several years later in the United States Constitution, they set us apart from other parts of the world. Like other rights conferred by our founders – freedom of the press and speech, and the right to bear arms, for instance – these rights are sometimes sources of discomfort. But they exist for an important reason: to protect us, particularly those who are marginalized and unpopular, from government overreach.

We, as a society, have faith in criminal convictions precisely because we know that the accused have constitutional rights that are aggressively enforced by lawyers and the courts against the government. (And yet even still, we know people are wrongfully accused of crimes and even wrongfully convicted despite these safeguards.)

As good as the appeal to “equal rights for victims” may sound, this appeal attempts to change the role of individual rights in the New Hampshire Constitution. The victims’ rights envisioned in Marsy’s Law are not being enshrined in the New Hampshire Constitution to provide a check on the state’s overwhelming power. Rather, these rights are designed to be enforced against the accused by the victim and the state, even before the accused has been convicted of a crime.

For example, under Marsy’s Law, the victim would have the right to refuse deposition and discovery requests made by the accused (even if such discovery requests were necessary to provide the accused with a fair trial). The victim would have the right to be heard and intervene at every stage of the criminal proceeding before the accused has even been convicted (arguably creating another prosecutor). The victim would have the right to a prompt conclusion of the criminal case (even if the accused needs more time to develop their defense). None of these rights check the power of the state. In fact, these victims’ rights do the opposite; they enhance the power of the state at the expense of the accused.

The focus of Marsy’s Law on providing victims’ rights against the accused (and in support of the government’s prosecutorial power) runs contrary to the whole notion of why the Bill of Rights was enshrined in the New Hampshire Constitution over two centuries ago – namely, to protect the accused from the government.

The New Hampshire Constitution was not designed to give the government rights against an accused. Yet Marsy’s Law – in seeking to make a victim’s rights equal to that of the accused – only acts to limit the rights of the accused precisely at the moment when the government is attempting to use its massive police power to deprive the accused of liberty and property.

Survivors of crime have often been through tragedy and horror. The criminal justice system absolutely owes victims the right to be treated with fairness and respect. Victims are owed the right to be notified of all court proceedings and to be heard at sentencing after the accused is convicted. These victims’ rights have already existed in statute since 1991, and they are drafted in a way that does not infringe on the constitutional rights of the accused.

A discussion about how to better enforce these existing victims’ rights is worth having. But that discussion should not be based on the claim that victims’ rights should be made “equal” to the rights of the accused in a criminal prosecution. Comparing these rights is like comparing apples to oranges. The only thing standing between the accused and raw government power are the constitutional rights that we provide to the accused. Let’s not undermine these sacred rights with Marsy’s Law as it is currently drafted.