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This November, voters will be asked to vote on Constitutional Initiative 116, Marsy’s Law. If approved, this initiative will add a section 36 to Article II of Montana’s Constitution setting out some 20 specific “rights of crime victims.” Reading the proposed amendment, one can hardly argue with its compassionate language; we can all agree that crime victims should be treated with dignity and respect and should not be re-victimized by the criminal justice system. But there are some hidden problems that voters should be aware of.

First, the proposed amendment is a solution in search of a problem. Montana’s legislature has already enacted a comprehensive body of laws that provide virtually the same victims rights as does CI-116.

Second, it is wrong to assume that police officers, prosecutors and judges, among others, presently ignore the plight of crime victims. They don’t, based on my 40-plus years of experience as a former prosecutor working with state and federal law enforcement and as Supreme Court justice.

Third, constitutionalizing victim’s rights, especially given the overly broad language of the amendment, creates numerous hidden problems. For example:

If one of the victim's (and that term is very broadly defined) numerous constitutional rights is violated, she or he is entitled to file suit for a remedy, which the court must fashion. This suit can be brought directly under the new amendment since it is “self executing”—something very rare in constitutional law. The victim will likely need the assistance of an attorney to file suit—but there is no provision for appointed counsel; so hiring an attorney is on the victim’s dime.

That leads to another problem: law enforcement, prosecutors and judges all enjoy some form of immunity from suit. Thus, if the victim intends to sue one or more of those officials for monetary damages, that remedy will probably be 99 percent unsuccessful. And, unless the victim’s attorney has some likelihood of getting paid (out of a damage award), it will be difficult for the victim to hire counsel. Moreover, the taxpayers are going to wind up defending or dealing with any suit that the victim brings. And all facets of the criminal justice system are already grossly understaffed and underfunded.

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But, here is the worst problem. In enforcing the victims’ constitutional rights, the defendant’s constitutional rights may be violated. For example, the victim can do that by preventing the defendant’s counsel from interviewing the victim and some witnesses. If the defendant’s constitutional rights to a fair trial, to due process, to effective assistance of counsel, to confront and meet accusers and witnesses face to face and to compulsory process for witnesses, both Montana and federal constitutional law may require that the charges against the defendant be dismissed or may require a second trial–the victims’ rights notwithstanding. That, obviously, is the last thing a crime victim needs.

If victims’ rights are truly a concern, then voters and victims should insist that the present statutory protections be adequately funded and enforced. There is always the remedy of the ballot box for public officials who won’t perform their duties.

Marsy’s Law is, in many respects, illusory. It is going to create more problems—and expensive ones—than it solves. Voters should read their Montana Voter Information Pamphlet and should think very carefully before voting for CI-116.

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James C. Nelson is a retired Montana Supreme Court justice who lives in Helena. 

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