As elected officials and police departments alike struggle to make sense of the confusing language in Marsy’s law, South Dakota’s interpretation — which allows police officers to classify themselves as “victims” of crime — represents a step in the wrong direction.
Marsy’s law is a victims’ rights law first passed in California that other states have adopted. In general, these laws provide victims with the right to testify during plea deals, sentencing and release decisions. In some states, they allow victims to refuse a defendant’s request for interviews. Importantly, these laws also conceal victims’ names from publication.
South Dakota’s version of Marsy’s law is a constitutional amendment, and the state’s interpretation of that amendment expands these protections to withholding the names of officers after a police shooting. Rather than protecting citizens or helping keep officers safe, this interpretation minimizes transparency efforts and grants the state greater flexibility to infringe on the individual liberties of citizens.
Unlike the average citizen, police officers interact directly with suspected criminals on a daily basis. This means that in states like South Dakota, an officer can perpetually claim to be a victim — and thus afforded the protections offered by Marsy’s law.
Law enforcement in America already suffers from a transparency deficit. In smaller departments, staffing issues and a general lack of funding serve as impediments to background checks for new hires, allowing officers who have misbehaved in one department to slip back into policing at another department. Even for well-funded departments, union contracts that mandate the erasure of misconduct and suspension of records prevent new employers from accessing an officer’s disciplinary history. Withholding officers’ names from the press not only makes it more likely these practices will continue, it hampers the ability of news media and other members of the public to collect and share information on these officers.
Moreover, the ability to regularly claim victim rights under Marsy’s law, combined with the wide-ranging discretionary powers inherent in policing, creates a system of perverse incentives ripe for exploitation by unscrupulous officers. When not in uniform, officers should undoubtedly be entitled to every legal protection afforded to civilians. Yet when acting as public servants imbued with the power of the state, officers carry asymmetric power relative to members of the public. Granting them additional protections tips the scales even further in their favor.
Indeed, there are already numerous laws, department policies and professional norms that protect officers. A legal doctrine known as “qualified immunity” protects officers who knowingly violate constitutional rights from being sued. Widespread department practices often permit officers to resign to avoid a firing record. Norms involving professional courtesy encourage officers to turn a blind eye to lawbreaking by fellow officers. In some places, departments even allot literal “get out of jail free” cards to officers’ family members.
Protected by laws and other policies, shielded from public record, and free to transfer to smaller departments, offending officers learn that the risk of consequences for misbehaving is minimal. In many cases, these protections also make it more difficult for departments to rid themselves of the small number of bad officers and root out police corruption in their forces. By protecting the identities of officers involved in police shootings from public oversight, Marsy’s law adds yet another layer of special privileges for officers who may have misbehaved.
Defendants’ rights under the state and federal constitutions, as well as the free flow of information through the press, serve as crucial checks against abuses of an overreaching government. Even if you agree with the application of Marsy’s law to members of the public, allowing officers to claim the law’s protection fundamentally undermines the spirit of constitutional protections for the people against the state — which lies at the heart of our legal tradition.