This year there is a proposed amendment to the Kentucky Constitution on the ballot known as Marsy’s Law. This is actually the second time the proposed amendment has appeared on our ballots. It passed in 2016, but the amendment was overturned by the Kentucky Supreme Court because the Court held that the wording on the ballot was misleading to voters. This time, the proposal on the ballot is much more lengthy, but I would argue that it is still misleading to voters by making sweeping promises it can’t keep and claiming to fix problems that don’t need to be solved.

The amendment purports to provide Constitutional rights to crime victims equal to the rights of the accused. Almost all of the proposed Constitutional rights are already provided to crime victims or provided by Kentucky law. Victims already have a right to appear at any Court proceeding, and each Commonwealth Attorney and County Attorney (prosecutors) have a Victim’s Advocate on staff to help notify crime victims of hearings, the Court process, and their rights under the law. Requiring the Commonwealth Attorney and County Attorney to provide notification of all hearings to a crime victim could be costly to the state and accomplish nothing helpful. Funds used to track down and notify crime victims of an arraignment might be better spent investigating the crime, talking to witnesses, and gathering and testing evidence. We don’t have unlimited resources.

A crime victim also already has the right to be consulted regarding proposed bond, settlements, and punishment. Final say for all of those things is ultimately with the Judge. Further, Kentucky already has a system called VINE Link to notify crime victims when the accused or convicted perpetrator is released or escapes from jail or prison. The crime victim only needs to go online to vinelink.com to make the request.

Marsy’s Law offers the false equivalency of granting crime victims co-equal rights with the accused. It’s an appeal to “fairness,” but it’s not fair to the accused or the system. The Bill of Rights to our Constitution provides Constitutional Rights to the persons accused of a crime because the weight of the government is attempting to remove the freedom, liberty, and sometimes the life of the accused. The Constitutional rights of the accused are an attempt to level the playing field.

The Constitution provides rights to the accused such as the right to a presumption of innocence, the right to be appointed counsel, the right against search and seizure of places and things without a showing of probable cause, and the right to a speedy trial to name a few. These rights are to protect the accused from the unlimited resources held by the government.

With Marsy’s Law, victims’ rights are about individual rights. There is no state or government power at play. Even though the accused has not yet been found guilty, the alleged crime victim is labeled as a crime victim by the Court to the jury, which undermines the right to due process and the presumption of innocence of the accused by granting the victim rights at the outset of the prosecution before a crime is established or a person is convicted. If a person is presumed to be a crime victim before a jury returns a verdict, then the accused is presumed to be guilty, not innocent. A crime victim is a witness, and his or her testimony should be properly weighed by the jury.

Marsy’s Law allows crime victims to refuse depositions and discovery requests, which could interfere with the due process rights of the accused. An accused might be refused basic information about the alleged crime, such as where it took place. This could increase the chance of mistakes, abuse, and wrongful convictions. Many times, discovery and an independent investigation by the accused will lead to evidence that could prove the accused innocent.

Marsy’s Law has ambiguous language with unforeseen costs and potential problems in implementing. Several states that have previously passed Marsy’s Law have found that the Constitutional promises, which are more difficult to amend than a law, are very costly and counterproductive. In 2016, South Dakota spent over $100,000 on staff to find victims of low-level misdemeanors like vandalism and petty theft. This is money that could be better spent investigating serious crime that affect the well-being of our community such as drug dealing, rape, and murder. Marsy’s Law provides Constitutional rights to the crime victim, but it does not provide funding to the system to pay for the requirements. It makes sweeping promises it can’t keep. The legislature should simply amend the statutes that it believes need changes and provide the funding for the requirements that might be added.

My final concern regarding Marsy’s Law is the provision that provides that an accused will not have standing as a victim to assert any victims’ rights. This provision calls into question the defense of self-defense. Police officers and prosecutors are faced with tough decisions every day to determine who to charge and prosecute in situations where who is the victim and who is the aggressor can be blurry and unclear. Ultimately, those questions are put to a jury, and this Constitutional Amendment could make the lines every blurrier.

Marsy’s Law is not as simple as being for victims rights or helping someone who was hurt. Our system of justice isn’t perfect, but it already has protections for crime victims. I urge all voters to read the ballot amendment provision carefully and consider all the implications.

Ami L. Brooks is a Logan County-based attorney.