NASHVILLE — A proposed Tennessee constitutional amendment sponsored by Rep. Patsy Hazlewood that gives crime victims a greater role in the judicial process is drawing concerns from the American Civil Liberties Union-Tennessee.
The amendment grants a greater right to privacy for victims, which has open records advocates fretting it could make things more difficult for the public and news organizations to obtain certain information about crimes and victims.
The Signal Mountain Republican's House Joint Resolution 822, if it passes the lengthy process in the state Legislature and is eventually approved by Tennessee voters, would insert "Marsy's Law" into the state constitution.
"All we're trying to do is elevate victims' rights to the same level as defendants' rights in the Constitution and provide some redress," Hazlewood said in a Times Free Press interview this week after the resolution cleared its first House panel.
Tennessee already has a "rights of victims of crimes" provision in its constitution. But Hazlewood and representatives of the "Marsy's Law" organization, say the current language doesn't go far enough.
ACLU-Tennessee, however, says victims' rights proposals such as Marsy's Law "undermine due process" for criminal defendants.
The measure is part of a national campaign funded by California billionaire Henry Nicholas, a co-founder of the semiconductor firm Broadcom, whose sister, Marsalee "Marsy" Nicholas, was stalked and killed by her ex-boyfriend in 1983.
A week after her death, the young woman's mother and her then-young brother, Nicholas, were confronted by the accused killer in a grocery store. Both were unaware the man had been released on bail.
Nicholas has spent millions of dollars on efforts across the U.S. to amend state constitutions and establish rights of victims in the criminal justice process. His ultimate goal is to get a similar amendment into the U.S. Constitution.
But critics in other states say some provisions go too far.
ACLU-Tennessee in its critique says that "though well intended, the Marsy's Law formula is poorly drafted and is a threat to existing constitutional rights." The organization says it is "premised on the notion that victims should have 'equal rights' to defendants.
"This opening salvo is a seductive appeal to one's sense of fairness," ACLU-Tennessee stated. "However, the notion that victims' rights can be equated to the rights of the accused is a fallacy. It ignores the very different purposes these two sets of rights serve."
The group says both the U.S. Constitution and all 50 state constitutions guarantee defendants' rights "because they are rights against the state, not because they are valued more by society than victims' rights. Defendants' rights only apply when the state is attempting to deprive the accused – not the victim – of life, liberty, or property. They serve as essential checks against government abuse."
The resolution also is drawing concerns from open records advocates due to language stating victims will have "the right to be treated with fairness for the victim's safety, dignity, and privacy."
Tennessee already has a victim's rights provision in its state constitution.
"This rewrite expands the language of the existing amendment and pushes us into a territory which in many ways is constitutionally uncharted," said Knoxville attorney Rick Hollow, who represents a number of news organizations across the state.
Hollow said before Marsy's laws began passing in states such as North Dakota, South Dakota and Florida, state constitutions did not recognize a right to privacy, although rights to privacy have been adopted by courts, including in Tennessee.
"Tennessee recognizes the same right to privacy as federal law," Hollow said. "More to the point, we have a law enforcement privilege that was recognized by the Tennessee Supreme Court in the Vanderbilt case about four or five years ago. The protection is already there."
In 2016, the state Supreme Court ruled against a coalition of media organizations that sought third-party records related to the high-profile rape case involving former football players at Vanderbilt University.
In its 4-1 decision, the state's high court said releasing such investigative records to the media and the public would jeopardize an accused person's right to a fair trial. The opinion held that court procedure supersedes the Tennessee Public Records Act in pending criminal cases, according to The Tennessean, which was among news organizations seeking the records.
Before initiating a constitutional amendment process, Hollow said, he believes "we owe it ourselves as a state to study it in a whole lot more detail than we have studied it to this point and see if there's a really a problem or if it's something that sounds like more of a problem than it is."
"I'm not against victims rights, not against protecting people but we already have that," Hollow added, noting being a victim of crime can be "pretty traumatic and sometimes stigmatizing. But there is protection out there right now. The constitutional amendment may be a little more premature."
Deborah Fisher, executive director of the Tennessee Coalition for Open Government, said "my concern is that we have a victims' Bill of Rights already in the Constitution that seems to address a lot of the important issues."
She said some provisions in the Tennessee resolution "have caused problems in other states where it's been rolled out. The good news is that we still have time to have really good discussions about this proposed resolution and potential constitutional amendment."
It "takes away the discretion of law enforcement to tell the public about who is killed or shot," Fisher said, cautioning it "would eventually undermine confidence in police because they would eventually investigate crimes and not be able to give out information."
A North Dakota Marsy's Law provision that enabled police officers involved in fatal shootings to refuse to be identified is not included in Hazlewood's version. The proposed amendment would not apply to law enforcement officers on duty.
But in states like Florida, there have been a variety of concerns involving police refusing to identify homicide victims and even not telling the public about residential burglary sprees. Policies vary by jurisdiction.
Hazlewood insisted "Marsy's Law for Tennessee will not hinder news organizations' access to public documents. Marsy's Law simply protects the victim's right to privacy by requiring the court to treat the victim with fairness.
"It is up to the discretion of the court as to what victim information can be redacted and released in public documents," Hazlewood said. "If enacted, news organizations would still have the right to be informed that a crime has been committed as well as the details of the crime. Documents can be redacted and released to comply with the right to privacy."
Contact Andy Sher at firstname.lastname@example.org or 615-255-0550. Follow him on Twitter @AndySher1.