Amendment S, the new crime victims bill of rights, is already infringing on the rights of defendants by keeping them in jail longer than necessary:
The victim notification requirement of Constitutional Amendment S, also known as Marsy’s Law, is creating delays in the court system because hearings are having to be rescheduled until victims can be properly notified.
“We used to be able to handle this stuff in two minutes,” said Ryan Kolbeck, president of the South Dakota Association of Criminal Defense Lawyers. “Now it takes two weeks and some of these people are sitting in jail during this time” [Mark Walker, “Lawyers Say Marsy’s Law Forcing Clients to Sit in Jail,” that Sioux Falls paper, 2016.11.29].
The new victim notification requirements are hitting poor defendants harder:
Minnehaha County Public Defender Traci Smith said her office has had court dates that were scheduled before Marsy’s Law was passed in which a judge was asked to address bond. But, because the state did not inform the victim that bond would be addressed at the hearing, another hearing has to be scheduled.
This, she said, is causing clients to sit in jail because prosecutors’ have to request more time to notify the victims.
“We cannot balance the state’s duties under Marsy’s Law on the backs of our clients simply because they are too poor to bond out of jail,” Smith said. “A client shouldn’t have to sit in jail or have his plea date delayed on a petty theft because the state didn’t notify Walmart or Kum-N-Go” [Walker, 2016.11.29].
Jason Glodt, the GOP consultant who got nearly two million dollars (see the 2015 year-end, 2016 pre-primary, and 2016 pre-general reports) from California billionaire Henry T. Nicholas to foist this fouling of due process on South Dakotans accused of crimes, insists that South Dakota law enforcement and courts are misreading the new constitutional amendment. Glodt says cops and courts don’t have to enforce the new victim rights unless a victim opts-in:
…Glodt says Marsy’s law is intended to be an opt-in program; something that is spelled out in the first paragraph following the list of victims’ rights.
“That clearly says the victim, upon request, may assert and seek enforcement of their rights,” Glodt said [Bridget Bennett, “Proponents Say Marsy’s Law Intended to Be Opt-In,” KSFY, 2016.12.01].
Glodt points to this clause of the new amendment:
The victim, the retained attorney of the victim, a lawful representative of the victim, or the attorney for the government, upon request of the victim, may assert and seek enforcement of the rights enumerated in this section and any other right afforded to a victim by law in any trial or appellate court, or before any other authority with jurisdiction over the case, as a matter of right [Amendment S].
But Minnehaha County State’s Attorney Aaron McGowan points to the opening line of Amendment S:
A victim shall have the following rights, beginning at the time of victimization:… [emphasis mine].
That language seems clear: victims have these new rights the moment they are victimized. These victim rights are just like free speech rights: sure, I can assert them in court, but they don’t start when I enter the courtroom. I have those rights at the moment I speak, or at the moment that someone unfairly prevents me from speaking. The state thus has an obligation to protect those rights before I assert them, and I can hold the state accountable for not enforcing those rights.
I can thus see why the courts are being cautious… and why Amendment S is now forcing South Dakotans who are innocent until proven guilty to languish longer in jail.
Jason Glodt is having to do a lot of explaining of what his constitutional language means. Maybe Jason Glodt should have taken the time to write that meaning into the actual language of Amendment S.