On Friday, Feb. 8, 2019, the Idaho Senate State Affairs Committee voted 8-1 to advance a controversial ‘Marsy’s Law’ proposal that threatens gun rights, due process, and criminal justice reform here in the Gem State.
Written by Parrish Miller
The backers of “Marsy’s Law for Idaho” claim that their proposal to modify Idaho’s Constitution will “provide additional rights to crime victims.” On the surface, this may sound like a good idea, but it has several dangerous flaws, including the bypassing of our constitutionally guaranteed right to keep and bear arms.
First, let’s take a look at some of the language that is being added or altered. The new language would say that “A crime victim has the following rights: … To reasonable protection from the accused and those acting on behalf of the accused throughout the criminal justice process.” The language also defines an alleged “crime victim” as “an individual who suffers direct or threatened physical, financial, or emotional harm as the result of the commission of a crime or juvenile offense.”
There are already numerous problems and unanswered questions here. What exactly is “threatened … emotional harm”? What constitutes “reasonable protection”? What even is the relevant definition of “reasonable”? Who gets to make these subjective determinations? Will it be a psychiatrist? A judge? A prosecutor? Who will provide the mandated “protection”? The Sheriff? The state police? Who will pay for it? How much will it cost? Who even has the authority or jurisdiction to deploy these forces to provide individual “protection”?
Why do the supporters of “Marsy’s Law” feel the need to move the definition of “crime victim” from Idaho statute (where it resides now) to the Idaho state constitution while leaving all these other matters conspicuously undefined?
Another concerning issue is the addition of new language stating that “Nothing in this section is intended to, or shall be interpreted to, supersede an accused’s federal constitutional rights…” That sounds good, right? But wait, why does it say “federal constitutional rights” and leave out state constitutional rights?
To understand the real intent here, we need to go back to Idaho House Bill 585 from the 2018 session in which liberal Democrat Representative Melissa Wintrow came very close to mandating gun confiscation against those convicted of domestic violence misdemeanors. The only real obstacle in her path was that the Idaho state constitution explicitly states (in Article 1, Section 11), “Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.”
Wintrow’s proposal would have allowed the seizure of firearms not used in the commission of a felony—or indeed in the commission of any crime—based solely on a single misdemeanor conviction. Fortunately, a narrow majority of Idaho legislators recognized that the proposal was unconstitutional and voted against it.
Now, we see this attempt to modify not just Idaho statute, but the Idaho constitution itself with new language that empowers the state to “protect” people even from merely “threatened” harm. What would this allow the Legislature to do going forward? According to the modified language in the state constitution, “The legislature shall have the power to enact laws to further implement, preserve, and expand the rights guaranteed to crime victims in the provisions of this section.”
Let’s put it all together now. Under this proposal, if you find yourself in the unenviable position of being “the accused” in any criminal proceedings—regardless of the severity (or lack thereof) of the alleged crime in question—the legislature (or judge or prosecutor or Attorney General… We really don’t know who yet) will now have the constitutional authority to do essentially anything they deem appropriate to provide “reasonable protection” to your alleged victim or victims. And while your federal constitutional rights may be left (at least somewhat) intact, your right to not have your firearms confiscated, which is recognized only under the state constitution, will be subjected to this new constitutional mandate to provide “reasonable protection” to alleged “crime victims.”
This is far from the only dangerous component of “Marsy’s Law,” however. The proposal will cost the state, counties, and cities (and ultimately taxpayers) millions of dollars; compromise due process in numerous ways; further overburden already overworked public defenders; significantly delay trials as well as probation and parole proceedings; and—in many cases—leave “the accused” to languish behind bars while these extended proceedings drag on indefinitely.
On the subject of due process, Idaho’s existing victims’ rights constitutional language says that alleged victims have the right “To refuse an interview, ex parte contact, or other request by the defendant, or any other person acting on behalf of the defendant, unless such request is authorized by law.” [Emphasis added]
The “Marsy’s Law” proposal would remove the “unless such request is authorized by law” exception from the constitutional provision, which severely compromises the sixth amendment rights of “the accused”. The removal of this vital language could allow an alleged “crime victim” the right to withhold potentially exculpatory evidence.
Some of the central goals of the criminal justice reform movement include streamlining the process, reducing incarceration rates, reducing the length of sentences, adopting alternative sentencing, and the restoration of rights following the successful completion of probation and/or parole. “Marsy’s Law” imperils and even stymies progress on these objectives.
If you care about gun rights in Idaho, if you care about due process, and if you care about criminal justice reform, it is imperative that you take a stand against “Marsy’s Law”!
To allow these proposed changes to Idaho’s state constitution to take effect would forever replace the principle of “innocent until proven guilty” with the legal elevation of newly-created rights of alleged “crime victims” over the long-standing, constitutional rights of “the accused”—and, as we have all seen time and time again (remember what happened to Brett Kavanaugh?), no one is safe from accusations.
Don’t fall for the gun grabbers’ latest scheme. Don’t give the “tough-on-crime” politicians who use human suffering as currency to win elections another excuse to spend half a billion dollars on a new prison. Don’t be drawn in by the slick and well-financed campaign.
Editor’s Note: The Canyon County Republican Central Committee has also voiced its opposition to Marsy’s Law, voting 27-5 in favor of a resolution stating that “the Canyon County Central Committee formally opposes the passage of a joint resolution in support of amending the Idaho State Constitution with any changes to or expansion of Marsy’s Law language.”
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