In addition to the Presidential primary and an important Judicial race, the ballot for the spring election in Wisconsin includes a question that is misleading in its wording and misguided in its intent. I will be voting no on this measure and, if you live in Wisconsin, I hope you will consider the same.

I wrote a version of this post that attempted to briefly lay out the most compelling legal and logical arguments about why, but it felt like rehashing stuff that’s already available from the ACLU of Wisconsin, editorials, and various other sources. I thought about dropping this and doing a totally different post instead, but ultimately decided there are still things I want to say, so I’m just going to do that.

It sounds good, doesn’t it? But this proposed amendment breaks my heart. We have massive problems with incarceration in this country. The United States incarcerates more total people and at a higher rate per capita than any other country in the world. Non-white people are incarcerated disproportionately, despite a great deal of research indicating that crime rates across race are very similar. And the thing that often bothers me the most is this: our prisons and jails not only fail to provide real opportunities for rehabilitation, but inflict further trauma. We are in a cycle that is moving backward. Within this context, there are systemic forces that keep pushing to make us think that we have more to fear than we do, and that harsh punishment is the only thing that will keep us safe.

This proposal is an element of that. Marsy’s Law, as it is called in shorthand, is predicated on the inaccurate idea that victims of crime lack rights in our system. Most of the bill attempts to codify protections of rights for victims that are either difficult to define or enforce (“To be treated with dignity, respect, courtesy, sensitivity and fairness”) or already exist within the judicial system (”to reasonable and timely notification of proceedings”). But one piece is problematic in a much more substantial way: it allows victims of crimes to “refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused”. The victim would still participate in the initial criminal investigation, before charges are filed, but beyond that point, as the attorneys are working through the case, they could refuse to grant interviews to provide further clarification and testimony. This is counter to the Sixth Amendment right to be able to hear from one’s accuser, which is critical for a just system.

Over the last 40 years, there has been a rise in what is sometimes referred to as the victims’ rights movement and one of the major accomplishments of this movement has been the growing use of victim impact statements during the sentencing phase of a criminal case. The movement has fought for the opportunity for victims to be heard in court so that judges and juries have a personal sense of what specific harms they have experienced because of the crime. I have conflicting views about this, as I do think this can lead to decisions that are based more on emotion than law, but I don’t think it is resulting in sentences that are beyond the bounds of the law. Moreover, many victims have also found that experience to be cathartic and helpful for their healing and I think there is value in that.

This amendment leaves me wondering though: does the victims’ rights movement want it both ways? Do they want to be able to share cathartic emotional statements when it’s time for determining how long someone will be incarcerated, but withhold information when it’s being determined whether or not they are guilty of the crime?

In no way do I mean to dismiss the experiences of victims or minimize the fact that testifying can be traumatic. It absolutely can and it is a difficult part of our system. Because our system is (at least in theory) based an assumption of innocence that must be proven otherwise, I understand that victims can feel that the process is harrowing and burdensome. But it is also a crucial part of our system and one on which all of our freedoms lie. I also think we will lose something if we allow people to bow out of it. I think there is opportunity for that catharsis, for a step in one’s transition from victim to survivor to be found in the participation of due process.

I’m so frustrated by the ways that many politicians, law enforcement professionals, and the media peddle the idea that we are unsafe every day and get us to fear one another. When we hear stories about crime, we imagine ourselves in the position of the victim or the victim’s family, never the defendant, and that is short-sighted of us. There are two types of cases that get the most attention by the media: those where the victim is someone who “had a lot going for them” – a promising youngster, the father of young children, somebody’s grandmother (all usually white); and those where the perpetrator is someone we might not expect – an innovative teacher, an accomplished doctor, a CEO. We easily empathize with the victim, our fear instincts demand it in some ways. But somehow we are so much slower to imagine that the teacher, the doctor or the CEO could be someone we love. And yet, that happens every day too.

For four decades, incarceration has exploded because it is easier to lock people up than deal with the real issues that drive crime: poverty, lack of mental health treatment, and addiction. It is easier to get elected if you are a politician who says “there are bad people out there, but I will keep you safe by putting them away,” than if you are one who says “This is complicated and we have a lot of work to do to address the needs of those that struggle.” At the same time, we have grown culturally more sensitive to victim experiences, which is a good thing. We must not take that progress and turn it into a tool that further enables this dysfunctional system.