Last week, Wisconsin Republicans introduced a bill that would amend the state’s constitution to create stronger protections for victims of crime.
Critics argued the law could deprive defendants of “critical information,” which could lead to wrongful convictions.
But according to Wisconsin Attorney General Brad Schimel, the court system is currently set up in favor of defendants. On Sunday, Schimel argued that victims are at a distinct disadvantage and the bill could help bring needed balance.
“It better evens the playing field,” he said. “It’s never going to be perfectly even, because in a criminal courtroom, the defendant's right to a fair trial, his constitutional rights, will always have an edge over the victim's rights, but this moves them closer to even.”
The bill is called “Marsy’s Law,” named after a woman in California who was murdered by her ex-boyfriend, and has inspired a handful of states to adopt stronger victim protections.
On Sunday's installment of “UpFront with Mike Gousha,” host Gousha asked Schimel why such a move is necessary, since Wisconsin already has a victim’s bill of rights and an amendment to the constitution that recognizes victims’ rights.
Schimel said the problem is that those rights are in the state statutes, rather than the constitution.
“That’s quite a difference in the courtroom, when something’s a constitutional right versus a statutory right,” he said.
In a courtroom, judges “err heavily” on the side of constitutional rights so that the decision isn’t subject to appeal, Schimel said.
The measure would give victims the chance to have more face time in court, Schimel said, allowing them to be present for events like bail hearings, something they are not currently allowed to do.
“The judge sees the defendant’s face at every single court appearance,” he said. “As a prosecutor for a long time, I think it’s good thing that the court sees the victim more often.”
The bill has received criticism from defense attorneys who say parts of it may be unconstitutional and could lead to wrongful convictions. Other critics have noted increased associated costs and said the provisions could increase the workload for prosecutors.
But Schimel said, “frankly, it’s work we should do.”
For communities to be safe, victims have to come forward and be part of the criminal justice system, he said.
“If we want them to do that, they need to perceive the system as not stacked against them, and this could help us do that,” he said.
Gousha asked whether the protections could further slow down an already slow court process and potentially re-traumatize victims.
“No, I think it’s the other way around. Crime victims are usually happy with how long things take in the system. It’s often the defense that needs more time,” he said. “Crime victims don’t want it to go more slowly, they’re not going to do anything that drags this process out.”
Schimel added that a constitutional change should not cost the state more, as the infrastructure for victims’ right are already in place because of state laws. The state already works to notify victims and foster communication between victims and law enforcement, he said.
Wisconsin Coalition Against Sexual Assault and the Wisconsin Professional Police Association support the effort.
Schimel also commented on the state’s backlog of 6,000 rape tests kits, a subject brought up by Democratic lawmakers at a recent budget hearing.
He clarified that the lab is up to date with all current pending investigations, and the “backlog,” a term he takes issue with, represents cases accumulated over the years where testing was not wanted or needed.
He was also asked to comment on the state’s progress against the opioid epidemic. He said Wisconsin is making headway, but he didn’t expect to see a decrease in the number opioid-related deaths in the short term.
The gateway drug to heroin is prescription painkillers, he said, and as the state works to aggressively control those painkillers, those already addicted to painkillers may turn to heroin, which in turn will lead to more deaths.
“This is patching the hole in the bottom of the boat. Law enforcement and treatment providers are desperately bailing out this boat full of water, but there’s a hole in the bottom, and that is prescription painkillers,” he said.
He then pointed to 207,000 pounds of unused medication turned into the state through drug take-backs days and the decline in prescription of opiates.