So-Called "Rights of Crime Victims" Amendment Would Favor Corporations and Limit Rights of the Accused

It's time to start cramming: Twelve proposed amendments are being presented to Florida voters this November. Of the twelve, the ACLU of Florida says that Amendment 6 is the "second most important amendment" to vote on this year behind Amendment 4, which would allow for the restoration of felons' voting rights once they've served their time. Dubbed the “Rights of Crime Victims,” Amendment 6 has garnered strong opposition from local and statewide organizations like the Broward County League of Women’s Voters and ACLU of Florida.

Amendment 6 is broken down into three core provisions. The first, Marsy’s Law, or the "Rights of Crime Victims" provision, is based on the California Victims Bill Act of 2008, which was created by the Nicholas family following the murder of Marsalee Nicholas. It focuses on a victim's right to due process, the right to be heard at public trial, the right to safety if a defendant gets granted bail, and the right to "be reasonably protected from the accused."

The proposed amendment would also raise the mandatory retirement age for judges from 70 to 75. Lastly, it would require judges to decide if a state agency correctly interpreted the law. Currently left up to state agencies who have been charged with breaking the law, this provision would switch responsibility to the judge assigned to the case.

Though these issues have little to do with one another, a vote in favor or opposition represents a yes or no on all three. This bundling is one of the factors that makes Amendment 6 so controversial. A Leon County judge threw out the Amendment in August, calling it "misleading," but the Supreme Court reinstated it on appeal.

The bundling approach by the Constitution Revision Committee has been a proposal pattern this year. In a peculiar example, proposed amendment 9 bundles an offshore drilling ban with a ban on vaping in enclosed work spaces.

Melba Pearson is a former prosecutor in Miami-Dade and Deputy Director of the ACLU of Florida, which staunchly opposes Amendment 6. “The first issue we have is that it is misnamed, because victims already have rights in the state of Florida.” Pearson references Article 1 of the Florida Constitution that assures a victim of a crime, "First, the right to be heard. Second, the right to be informed. Third, the right to be present.” Pearson says that “victims don’t gain anything new as a result of this particular amendment.”

Many voters agree. One of these is 74-year-old Joanne Sterner, president of Broward NOW, and resident of Pompano Beach. Sterner says Amendment 6 doesn’t belong in the Florida constitution. “Victims' rights are already protected by the Constitution and [it] eliminates an existing provision protecting some constitutional rights of the accused.” The Marsy’s Law component proposes removing a current provision in the state constitution that says, “victims’ rights can not infringe upon the rights of the accused.”

The Broward County League of Women Voters echoes this concern. “We feel that the victims' rights are already protected,” says the League’s President Bradette Jepson, “and we’re concerned about interfering with the rights of the accused.”

Another point of contention has to do with how the amendment allows a limitation of the appeals process to two years. Speaking on behalf of the Broward County Public Defenders Office, Chief Assistant Public Defender Gordon Wekes opposes Amendment 6 because of the interference with the pursuit of justice.

Wekes says that the only real difference with Marsy’s law compared to victim’s rights as they stand in the Florida constitution is that “it’s now trying to encroach on the process of due process. That means the search for justice, the defendant's ability to prepare for trial, how long that’s going to take, how you proceed with depositions.” Wekes is adamant that, “those sensitive issues are fundamental to trial practice.”

The impact on the community will include “significant unintended consequences," adds Wekes. "To allow a victim to dictate the time schedule for the preparation of a defense case is going to cause a constitutional crisis between the Florida Constitution and the United States Constitution."

Activist groups like the ACLU say that ratifying Amendment 6 would cause another problem: it would tip the scale in favor of corporations. “Let's say you have a 19-year-old young man that shoplifted something from Walmart,” says the ACLU’s Deputy Director Pearson. “So he steals something from Walmart, and he has no criminal history. He has his life ahead of him; he may be getting ready to go to college, whatever it may be.”

The former prosecutor explains that in most jurisdictions in Florida, the young man would end up on a diversion program, and that would be the end of it. “As a result of this amendment, corporate Walmart can come in with their high-priced attorneys... and say, “You know what? We want to make an example of this young man. We’re sick and tired of people stealing from Walmart. We want to see three years [of] prison for this young man.”

With this amendment, says Pearson, “a corporation now has the same standing as a human victim; as the next of kin that you’d normally think of in a homicide case... They now have the same footing.” She warns that corporations could easily pour resources into changing outcomes in the criminal justice system, which is not necessarily based on justice, but on “corporate needs and desires.”

Neither the ACLU or the Broward League of Women Voters were able to provide comment on their respective organization’s response to other provisions in the bundled proposed amendment, citing their focus on the Marsy’s Law proposal. “We’re worried about the effect on rights of people who are charged with crimes here in Florida, as well as the victims getting what they need; not something that they already have," says Pearson.

Public defender Wekes speaks to this sentiment. “We may have a valid conversation about whether judges should be sitting on a bench after 70... but I can’t even start to have that conversation because this entire amendment is spoiled.”