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Police who shoot civilians are using a victims’ rights law to keep their names secret
The road to the hell of bad criminal justice policy is often paved with good intentions. In the early 1800s, Pennsylvania Quakers created a prison system where people served entire sentences in isolation, not primarily as punishment, but as an opportunity to seek forgiveness from God. The solitude, they said, would bring penitence. No longer was it a prison but instead a “penitentiary.” Now, solitary confinement tortures tens of thousands of people across the country each year. Yesterday, The Daily Appeal noted how the First Step Act might be worse than weak; it could be counterproductive. “The greatest sins of the First Step Act are not its modesty,” writes legal scholar Marie Gottschalk. Rather, “the legislation nicks the edges of the carceral state while bolstering disturbing trends in criminal justice reform.”
Body cameras, introduced as tools to help hold police accountable, have become simply tools for police to use against civilians.
Nowhere should intentions be scrutinized more than in the realm of “victims’ rights” laws. As Matthew Harwood writes for Reason this week, cops in South Dakota are using a victims’ rights law to prevent their names from being released after they shoot civilians. Here is how it works: After shooting a civilian, whether the civilian lives or dies, a cop will claim that he or she was the victim of a crime––maybe the civilian was menacing the cop, or “going for his gun”––and invoke Marsy’s Law, a 2016 constitutional amendment passed by the state’s voters that protects victims’ privacy rights. After one such incident, when a deputy in the Pennington County Sheriff’s Office killed a person, a spokesperson told a local paper that the deputy was invoking protections under Marsy’s Law: “The new constitutional amendment affords him protections as it does any victim of crime.” [Matthew Harwood / Reason]
Harwood calls this use of the law an “unintended consequence” that has caused concern among civil libertarians and policing experts. Jonathan Blanks, a research associate at the Cato Institute, says this use of Marsy’s Law is “absurd,” and predicts it will only strengthen the secrecy of law enforcement, which often keeps its actions away from the public, particularly when they are “controversial or potentially illegal.” Blanks adds that police officers wear their names on their uniform. “That information, by nature, must be public,” said Blanks. “You have law enforcement officers able to use Marsy’s Law to shield their identities in the line of duty, doing the public’s work,” laments David Bordewyk, general manager of the South Dakota Newspaper Association. “It’s something that none of us ever contemplated when Marsy’s Law was enacted in South Dakota. It obviously flies in the face of good open transparent government at all levels in our state.” [Matthew Harwood / Reason]
Police officers, of course, can be legitimate victims of crime, but giving them the right to invoke privacy protections when they use force could have serious effects on community trust, says Blanks. “When you’re protecting the worst officers,” Blanks said, “all of the officers get smeared.” And the public assumes the worst of all officers, even those trying to do their jobs well. The Marsy’s Law for All campaign continues its mission to enshrine these policies in every state constitution. Harwood argues that every legislature should defeat the initiative because of the legislation undermines defendants’ rights, but any legislature that does go forward with it “should at the bare minimum amend the language to exclude police officers from its protections.” [Matthew Harwood / Reason]
Police departments release mug shots of people who are presumed innocent, but they can hide their identities when they use violence in the public’s name. “No, no,” Blanks said, “that’s not how it should work.”
Last year, proposed changes to South Dakota’s Marsy’s Law indicated that helping police, prosecutors, and corrections officers was the true motivation behind the amendment. Those changes were not aimed at preventing police from using the law to protect themselves after killing people, but rather to lift various bureaucratic burdens that the law placed on police and prosecutors. One state representative said the changes “strengthen victims’ rights,” but they actually seem designed to strengthen law enforcement’s position. Changes include requiring victims to opt in to these rights to reduce the number of victims that need notifications. They would also allow law enforcement to publicize information that the amendment would keep private, to help police investigate. [James Nord / Associated Press]
Even the Marsy’s Law for All campaign, which has successfully gotten versions of the law passed in at least 10 other states, admitted that law enforcement interests were as important those of crime victims. As one strategy consultant said, “I know there’s a genuine desire to get this passed to help law enforcement and continue to protect victims’ rights.” [James Nord / Associated Press]
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