SDGOP insider Jason Glodt offers an initiated constitutional amendment to enact California’s “Marsy’s Law” in South Dakota. SDGOP fawner Pat Powers says this “crime victim’s bill of rights” is just great. My skepticism tingles.
The pro-victim language bracketing this amendment—”Are you ready to get behind and support the victims of crime in South Dakota?”—dares critics to make themselves out to be meanies if they set aside emotion and subject the proposal to rational analysis. But this proposed amendment looks like an unnecessary and unwise tinkering with the state constitution.
The proposed amendment creates 19 new “rights” for “victims” of crimes or delinquent acts. The full definition of “victim” is “”a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against who the crime or delinquent act is committed. The term also includes any spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship, and includes a lawful representative of a victim who is deceased, incompetent, a minor, or physically or mentally incapacitated. The term does not include the accused or a person whom the court finds would not act in the best interests of a deceased, incompetent, minor, or incapacitated victim.” “Substantially similar” is an interesting phrase: boyfriends? girlfriends? live-in lovers? Frat brothers?
The first four rights enumerated in Glodt’s amendment are no-brainers, the kinds of protections that every citizen already enjoys under various provisions of law:
1. The right to due process and to be treated with fairness and respect for the victim’s dignity;
2. The right to be free from intimidation, harassment and abuse;
3. The right to be reasonably protected from the accused and any person acting on behalf of the accused;
4. The right to have the safety and welfare of the victim and the victim’s family considered when setting bail or making release decisions;
From a conservative perspective, if we already have rights under existing statute, there should be no need to create new statute. Glodt should have the burden of proving that citizens do not currently enjoy these four rights.
Right #5 is Glodt’s first legal landmine:
5. The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records;
This text appears to give crime victims the right to prohibit any journalist from publishing their names, images, addresses, hometowns, employers, or any other identifying information. When Dakota War College accused me in July 2013 of stealing documents, alleged crime victim Chad Haber could have asserted Glodt Right #5 to demand that I remove from my blog any mention of his name or the name and location of his non-profit office. Under Glodt’s familial definition of “victim,” Haber’s wife Annette Bosworth could also have demanded that I scrub my blog of any mention of her name, office location, or schedule of campaign events. Glodt Right #5 becomes a blanket prior restraint right for anyone alleging a crime.
Glodt Right #5 also creates a bureaucratic nightmare for public officials, reporters, banks, and any other entity that may hold or seek records about crime victims. The amendment language says victims have a right, enforceable in court, to be notified of “any” request for information or records that might identify or locate those victims, not just requests from accused perpetrators or people acting on their behalf. Technically (and we have to read laws technically), the Secretary of State would have to notify “victim” Chad Haber every time I check the public database for his campaign finance reports (dang! still delinquent, more than nine months later!). Victims could demand that reporters notify them every time they ask police, neighbors, or anyone else anything about the victims of an alleged crime. I don’t think such nightmarish intrusions into normal information-gathering activities are Glodt’s intent, but nothing in the language he wants to throw on the ballot prevents such legal snarl-ups.
Right #6 provides victims an interesting immunity from subpoena:
6. The right to privacy, which includes the right to refuse an interview, deposition or other discovery request, and to set reasonable conditions on the conduct of any such interaction to which the victim consents;
South Dakota’s statute on subpoenas for discovery already includes a provision allowing a judge to quash or modify an unreasonable or oppressive subpoena. Do we really want to further deny defendants access to information that could establish their innocence?
While Right #5 creates trouble for journalists, Right #10 may allow journalists to create trouble back for prosecutors of cases involving crimes against the public:
10. The right to confer with the attorney for the government;
Consider the voter bribery conducted by medical cannabis petitioners last weekend. That’s a “offense against the elective franchise.” We’re all victims. Thus, if the state picks up this voter bribery case, all of us participants in the elective franchise will have a right to confer with the Hughes County states attorney or the Attorney General about the conduct of the case. For reporters and bloggers, that’s a dream: if we call the AG for comment and he doesn’t get back to us, we can sue. If the AG refuses to share details of the case with us, we can sue.
Of course, the SA or the AG might not be able to get back to me because he’d have 500,000 other victims in line waiting to confer.
Right #12 helps us journalists get information about cases of crimes against the public:
12. The right to receive a copy of any pre-sentence report or plan of disposition, and any other report or record relevant to the exercise of a victim’s right, except for those portions made confidential by law;
Apply that right to the Annette Bosworth petition-perjury case (a crime of which all South Dakotans were victims), and wow—we could all see the pre-sentencing reports that Judge Brown received before giving her 500 hours of community service. I hope the AG and circuit courts are ready to set up electronic mailing lists for all the reporters who will take advantage of the services entailed in Glodt’s amendment.
Right #15 is redundant:
15. The right to proceedings free from unreasonable delay, and to a prompt and final conclusion of the case and any related post-judgment proceedings;
The Sixth Amendment already guarantees a “speedy and public trial” for all defendants. Glodt Right #15 would not seem to add any force to that provision.
The Glodt amendment offers certain rights applicable to victims after the perpetrator has been sentenced, and those are mostly fine. But the above rights and some others in the Glodt amendment share a fatal legal flaw. Supporters of the Glodt amendment will say that this proposal is about giving victims rights and respect similar to what the legal system gives to criminals. But in many cases, we’re not talking about rights for criminals; we’re talking about rights for defendants. And as long as we’re talking about defendants, the rights above aren’t being granted to victims; they are being granted to alleged victims, to accusers like Chad Haber, to people who in the eyes of the law are not proven victims.
This overarching argument is exactly the sort of unpleasant legalism that Glodt and his campaigners will use to cudgel their opponents—How dare you suggest these poor families aren’t victims?! But it’s true: defendants get special status because the state is coming down on them. Defendants are innocent until proven guilty; they thus enjoy unique protections against the possible errors and abuses of the state. Just as the state may not oppress defendants until due process leads to a guilty verdict, the state should not be able to favor certain citizens until due process has shown they have been harmed. Alleged victims enjoy protection from harassment and invasions of privacy under existing statutes that apply to all citizens equally.
The Glodt amendment may have noble intentions, and I invite more astute legal readers to explain how those noble intentions may fit with due process. However, on first reading, I find the provisions of the Glodt amendment either redundant, unenforceable, or repugnant to the principle of innocent until proven guilty.