State of the State: Tinkering with the Constitution Demands Careful Consideration

Oct 1, 2014

Brian Mackey
Credit mattpenning.com 2011 / WUIS/Illinois Issues
   Twenty-fourteen was going to be a banner year for direct democracy in Illinois. At one point, it was possible voters would be asked to weigh in on as many as seven different ballot questions, including four constitutional amendments. But as the election draws near, two of those ideas are off the table: Republican gubernatorial candidate Bruce Rauner’s push to impose legislative term limits failed to meet the requirements of the Constitution, and a separate attempt to change the way House and Senate districts are drawn failed to gather enough valid signatures.

That leaves voters to decide five questions: three advisory referenda covering access to contraceptives, the minimum wage and a tax on income greater than $1 million; a constitutional amendment that would protect voting rights; and another constitutional amendment that would expand the rights of crime victims. I think it’s fair to say that only one of those has a real constituency behind it: the crime victims’ measure, also known as Marsy’s Law.

The other four questions seem to be driven largely by politics. Like many Democrats, Gov. Pat Quinn has made a minimum wage hike a centerpiece of his re-election campaign. When it was clear that too few lawmakers were willing to vote for it, Democratic leaders settled on the referendum instead. The same type of failure drove the so-called millionaire’s tax — House Speaker Michael Madigan first proposed it as a constitutional amendment, but when it was clear he didn’t have the votes, he settled for the referendum.

The question about access to contraceptives came in the wake of a U.S. Supreme Court ruling — unpopular with Democrats — that the owners of Hobby Lobby Stores, Inc. could exercise a religious objection to get around a provision in the Affordable Care Act that would have required them to provide insurance coverage for certain contraceptives. The fourth referendum in the political category adds constitutional protections for voting rights. Unlike the advisory questions — the answers to which lawmakers are free to ignore — this one actually has teeth. But it’s not as though Illinois has been a hotbed of minority voter suppression. The success of Democrats here is a testament to that.

And so we come to the constitutional amendment dealing with crime victims’ rights. That might have a familiar ring: Illinois voters first added rights for victims of crime to the state Constitution in 1992. But for about six years, advocates have been pushing for an expansion.

Back in 2008, Attorney General Lisa Madigan convened a series of discussions across the state. Advocates say they heard a flood of complaints: families were not consulted before prosecutors negotiated plea bargains with defendants, victims were not told when an offender violated probation, and victims were not allowed to read impact statements aloud in court. Many of these problems would seem to have been addressed in the 1992 constitutional amendment, but advocates say they were too-often ignored. What victims really need, they say, is the legal power to guarantee their rights in court.

“They never had an enforcement mechanism,” says Polly Poskin, who heads the Illinois Coalition Against Sexual Assault. “What that meant is there was never a remedy. So had a right been violated, the victim really didn’t have standing. She didn’t have — or he didn’t have — the opportunity to address the court to redress the grievance.”

The constitutional amendment that goes before voters in November would give victims the power to assert how their rights were violated, and the court must promptly rule on a victim’s request.

For several years, this change was opposed by prosecutors. Back in 2012, Matt Jones, a lobbyist for prosecutors, said opposing the measure was the hardest thing he had done before the General Assembly. “We view ourselves as the voice of victims,” Jones testified at the time. “We brand ourselves as the voice of victims. We stand shoulder to shoulder with victims every committee hearing. ... And yet this is the one time that we don’t.” The argument managed to get the popular measure blocked in the House Judiciary Committee. It seems there was some heavy background maneuvering — several of the members were clearly unhappy about having to cast votes against crime victims.

Democratic state Sen. Heather Steans of Chicago co-sponsored the crime victim rights constitutional amendment.
Credit WUIS/Illinois Issues

  Fast forward two years, negotiations ensued, and prosecutors shifted their position to neutral. “Critical to the victims community was the grant of standing, to assert their rights,” Jones says. “That gave them a direct pipeline into appellate review, which was very important to them.” But the final language does not give victims the right to an attorney — particularly not a court-appointed attorney. “Our concern all along was the improper role of an attorney in the appropriate prosecution of a case,” Jones says. “It says that they have standing. It says that they are not a party. It says that it does not interfere with our constitutional, statutory rights, duties, responsibilities. So we think this strikes the appropriate balance to give victims what they need and respect our pivotal role in this process.”

But not everyone is sold. The Illinois State Bar Association still opposes the measure. The group’s Jim Covington says one of his biggest issues with the proposal is philosophical: “We don’t like legislating by constitutional amendment,” he says. “It just makes us nervous, because there’s great difficulty trying to make adjustments in the system later by statute.”

He says he’s worried that an already over-burdened criminal justice system is going to “go from a two-ring circus to a three-ring circus.”

“What does the victim do with the additional rights they’re given? Does he or she gang up with the prosecutor? We just don’t know,” Covington says. “We’re pretty big on certainty with the criminal justice system because the post-judgment litigation can go on for years. We have a pretty sorry record of wrongful convictions in this state.”

He also says there’s a common misperception among victims that prosecutors are “my lawyer.” It’s worth noting that criminal cases are not titled Victim v. Defendant, but rather People v. Defendant, because prosecutors are supposed to represent the best interests of society, not the victims.

This was the concern of one of the two legislators who voted against the constitutional amendment — it passed the Senate unanimously, 59-0, and the House by a vote of 111-2. Rep. Elaine Nekritz, a Democrat from Northbrook, echoed Covington’s concerns about tinkering with the Constitution. And she has her own philosophical qualms about upsetting the balance of rights in criminal court.

Rep. Lou Lang of Skokie co-sponsored the crime victim rights constitutional amendment.
Credit WUIS/Illinois Issues

  “If you look back in the history of a Magna Carta, the Constitution — this is all about the government’s rights vis-a-vis someone whose liberty they are about to take away,” Nekritz says. “That’s what we have tried to enshrine in law and develop very careful protections about. The victim is an important player in this, and I don’t mean to minimize that. But that’s not what we have traditionally addressed in the Constitution. We have traditionally addressed that in statute.”

Backers of expanding constitutional rights for crime victims are beginning to travel the state holding press conferences and meeting with newspaper editorial boards. If the legislative vote is any indication, they will not have a tough sell with voters. After all, who wants to cast a vote against victims of crime? Yet it’s worth remembering that most laws have unintended consequences. And as shown by the 22 years that have elapsed since the first crime victims’ bill of rights, when it comes to changing the constitution, opportunities for do-overs are hard to come by.

Illinois Issues, October 2014