NY Daily Record Since 1908
Life can be so, so different in Florida. Take, for example, the state’s most recent Constitution Revision Committee, which concluded its work on April 16, 2018.
The Florida Constitution requires such a commission to be convened every 20 years. Unlike New York, there is no vote on calling a commission. Instead, the governor, the two branches of the legislature, and the chief judge appoint 37 people to serve. No other state follows this process.
Starting last year, the Constitution Revision Committee held public hearings and then discussed in committee and as a whole many proposals to amend the Florida Constitution. In the end it recommended 16 changes, bundled in eight amendments.
The amendments now go to the voters in November. Sixty percent must approve an amendment for it to become law.
Some observers claim the Commission bundled the changes to enhance the prospects of a weak change passing. One bundling cited is Proposal 6001, appearing on the ballot as Amendment 6.
One part of the proposal raises the mandatory retirement age for judges from 70 to 75, a laudable goal as attorneys remain competent as they age. Another part of the proposal, however, replaces six lines on the rights of crime victims with 150 lines, greatly expanding those rights.
Providing victims with certain rights in criminal proceedings is another laudable goal. New York achieves the goal through a series of statutes. See, e.g., Executive Law §§ 640-649. The Commission wants to go one step further, as other states have done, by enshrining the expanded rights in the state constitution. Doing so may be counterproductive.
A constitution should be a statement about governance — the general relationship between the branches of government and government and its citizens. A constitution should not get into the details of the relationship, which should be left to the branches.
Here 37 appointed persons are drafting policy that normally 160 elected members of the Florida Legislature would do. If the voters approve the proposal and its language later needs revision, Florida will have to adopt another constitutional amendment — a cumbersome process.
Besides the expansion’s inappropriate placement in the constitution, the language of the proposal is troublesome. Its purpose is to protect the right of victims “to achieve justice,” to ensure them “a meaningful role” in the criminal justice system, and to “ensure” their “rights” are “protected by law in a manner no less vigorous than the protections afforded to criminal defendants and juvenile delinquents.”
“Equal rights” has a seductive appeal to one’s sense of fairness. Even more so if you believe the courts have broadened the scope of defendants’ protections too much.
The fallacy of the appeal is the protections afforded defendants are rights against the state. It has the power to deprive a person of life, liberty or property. The protections guaranteed by provisions such as the Fourth and Fifth Amendments act as a check on the state’s use of that power.
By contrast, victim rights are against another individual — the defendant — and not the state. In particular, Proposal 6001 grants a victim the right to be notified of the happenings in a criminal proceeding, appeal and parole application, be present at all stages of a proceeding, including the setting of bail, confer with the prosecuting attorney, obtain an order of protection, not have disclosed information that would locate the victim, submit an impact statement, and be awarded restitution.
The proposal also enables the prosecuting attorney to move for a speedy trial, a right reserved to defense counsel in New York. Last but not least, the proposal requires all appeals and collateral attacks to be disposed of in two years after judgment in noncapital cases and five years after judgment in capital cases. If a disposition takes longer, a court must explain why.
The pitting of victim rights against defendant rights may cause a court not to enforce the latter in some cases or lead to a hasty decision in other cases. More innocent people may be convicted. The exercise of the expanded victim’s rights will definitely strengthen the state’s position against the defendant.
To this observer, the Constitution Revision Commission knew about the possible consequences of the proposal but did not care. The six lines being replaced granted rights to victims “to the extent that these rights do not interfere with the constitutional rights of the accused.” This language is nowhere to be found in the proposal.
One member of the commission tried hard to unbundle all of the changes, not just those contained within Proposal 6001. He failed. Now the media and civil rights organizations, like the ACLU, are opposing Proposal 6001, because it combines the bad with the good. We will see what the voters of Florida say in November.
Scott Forsyth is a partner at Forsyth & Forsyth and serves as legal counsel to the local chapter of the NYCLU, but the views expressed herein are his own. He may be contacted at 585-262-3400 or [email protected]
