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Wisconsin Constitution – Construction: Victims’ Rights Amendment, Art. I, § 9m

Patrick G. Schilling v. State Crime Victims Rights Board, 2005 WI 17, on certification

Issue/Holding: The first sentence of Art. I, § 9m (“dignity” provision) is a statement of purpose, articulating the importance of crime victims’ rights, but is not self-executing. ¶¶13-26.

General methodology of interpreting constitutional provision – plain meaning of words; constitutional debates; earliest legislative implementation – recited, ¶16. In the present instance, prosecutor Schilling played a 911 tape at a homicide sentencing without first warning the victim’s survivors, who were present and apparently traumatized by the tape and who later filed a complaint with the crime victims rights board. The board obligingly issued a private reprimand against Schilling, thus raising a nice question of interference with prosecutorial discretion which is ducked by the court’s conclusion that the provision isn’t self-enforcing, ¶9 n. 3. This does not, of course mean that art. I, § 9m is a dead letter; to the contrary, the court stresses that the first sentence of the provision enunciates high policy, while the succeeding sentences are self-enforcing because they do articulate specific rights (“the opening sentence of Article I, Section 9m of the Wisconsin Constitution was meant to be a statement of purpose, set apart from and then followed by the enumeration of the specific enforceable rights crime victims are afforded in the second sentence,” ¶22). You haven’t heard the last of victims’ rights, then, and if the court is wary of using the victim’s rights swing blade to hack into the thicket of prosecutorial discretion, it may be less diffident when it comes to a backhoe trenching on defendant’s rights. We will have to see whether Booker creates any sort of obstacle. In the meantime, you might do well to keep in mind the text of the amendment:

This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: timely disposition of the case; the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; notification of court proceedings; the opportunity to confer with the prosecution; the opportunity to make a statement to the court at disposition; restitution; compensation; and information about the outcome of the case and the release of the accused. The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law.


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