Voters in six states soon will face a ballot initiative that for some seems like a no-brainer — whether to grant crime victims certain rights under the state constitution, such as the right to be treated with fairness, the right to confer with the prosecution and the right to attend key court proceedings.
But even as a billionaire-backed campaign spreads across the country, some lawyers and civil rights experts say the push to give crime victims rights equal to those of criminal defendants could set up a clash over core aspects of the legal system, such as the accused person’s right to due process and the right to be presumed innocent until proven guilty.
“It undermines our system of justice as we know it,” said Holly Welborn, policy director for the American Civil Liberties Union of Nevada.
Since 2008, voters have approved “Marsy’s Law” amendments in California, Illinois, North Dakota, Ohio, South Dakota and Montana (Montana’s amendment later was struck down on procedural grounds). This year, voters in Florida, Georgia, Kentucky, Nevada, North Carolina and Oklahoma will consider versions of it.
Proposals in the Iowa Legislature earlier this year drew bipartisan support at the committee level, but did not get called up for a floor vote.
Some lawmakers noted that many of the provisions already are in state law and others questioned whether the amendment would add substantial costs to an already financially strained judicial system.
The proposed amendment received support from Gov. Kim Reynolds, who joined a campaign to press for it. State Rep. Ashley Hinson, R-Marion, ran the bill in the Iowa House.
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Eric Baker, director of Marsy’s Law for Iowa, implored legislators to take the issue up again.
“Even though the Legislature failed to act this year, we will not back down because we know that innocent Iowa crime victims still deserve constitutional protections,” he write in a column this summer in The Gazette.
For such a constitutional amendment to go before Iowa voters. the proposal would need to be passed in two consecutive sessions of the Legislature.
All versions of Marsy’s Law proposals on the ballot this year would make it a state constitutional right for people directly harmed in a crime to request and receive notification when the perpetrator is released from jail or prison. The initiatives also list victims’ right to be told about and to attend public proceedings involving the criminal; to be heard in any public proceeding involving sentencing, release or a plea; and in the case of the Nevada and Oklahoma proposals, to refuse interviews or other requests made by the accused person unless ordered to do so by a subpoena or court order.
Under the law, victims generally must assert their rights. For instance, they must ask to be notified of upcoming court dates, rather than be told automatically.
Eventually, the campaign hopes to get rights for victims written into the U.S. Constitution.
The overall impact of Marsy’s Law where it has been enacted has been hard to gauge because so many variables play into the outcome of criminal cases, legal experts say. Such amendments have led to some confusion, and in South Dakota, a deluge of paperwork. In California, some victims’ rights advocates say a decade-old amendment was a good idea but could be better implemented.
Henry Nicholas, the billionaire founder of semiconductor company Broadcom, has almost single-handedly bankrolled victims’ rights amendments in a dozen states through a campaign called Marsy’s Law for All, named for his sister, Marsy, who was murdered in 1983.
Days after the murder, their mother ran into the accused killer — the girl’s ex-boyfriend — at a grocery store, unaware he had been released on bail, according to the campaign. He was later convicted of second-degree murder.
Through the end of 2017, Henry Nicholas had spent about $27 million on the campaign to get the six amendments onto the ballot and approved by voters, according to Ballotpedia, an online encyclopedia of American elections.
For much of American history, victims have not had much of a voice in criminal cases beyond answering questions on the witness stand, according to the American Bar Association. That’s because criminal cases pit an accused person not against the victim but against a prosecutor acting on behalf of the state.
But over the past 40 years, the federal government and every state have enacted laws to help victims, including laws that instruct judges to consider victims’ safety before releasing defendants from custody, and that give victims the right to be notified when a defendant gets out of jail. Heartfelt statements from victims have become a courtroom norm.
Yet in many states, current law isn’t good enough, said University of Utah law professor Paul Cassell, a victims’ rights expert.
Statutes can be more easily ignored than constitutional amendments, he said, and even some amendments to state constitutions aren’t comprehensive enough.
“Does this take victims’ rights to the next level? Yes, it does,” he said of Marsy’s Law. “That is by design.”
There are countless examples of victims who slip through the cracks of existing law, said Henry Goodwin, communications adviser for the Marsy’s Law for All campaign. For instance, the Oklahoma campaign has highlighted the story of Leesa Sparks, who says she was never told about her abusive ex-boyfriend’s court dates, sentence or release after he spent four years in prison. Sparks disagreed with his sentence, according to a testimonial on the Marsy’s Law for All website, but never had a chance to share her views in court.
The ACLU, defense lawyers and some prosecutors say states are doing plenty to protect victims and that the proposals could make it harder for the accused to get a fair trial.
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Marsy’s Law would interfere with a defendant’s Sixth Amendment due process rights, said John Piro, the chief deputy public defender for Nevada’s Clark County, by giving people harmed by a crime the right to be heard before the alleged perpetrator has pleaded innocent or guilty.
That inserts people who are hurt, angry or grieving into what’s supposed to be a dispassionate process, he said.
The biggest problems have occurred in South Dakota, where a version of Marsy’s Law approved by voters in 2016 led to longer jail stays while courts waited for victims to be notified and swamped county staff with notification paperwork even for minor crimes such as vandalism, local officials say.
“It overwhelmed some of our systems, and I think some of the true victims this was intended for sort of got lost,” said Minnehaha County Sheriff Mike Milstead.
The problem was that the amendment made victims’ rights compulsory unless victims opted out of exercising them, said South Dakota House Speaker Mark Mickelson, a Republican.
He initially proposed repealing the amendment, but then teamed up with the Marsy’s Law for All campaign to write a ballot initiative that changed the language to make the rights “opt-in” rather than “opt-out.” The fix easily passed.
Across the border in North Dakota, where victims must “opt in” to exercise their rights under a 2016 Marsy’s Law amendment, the criminal justice system has experienced no such crisis.
But it has caused some additional litigation and expense, said Aaron Birst, the executive director of the North Dakota State Attorneys’ Association. Counties and the state have spent more than $800,000 updating victim notification systems to cover more proceedings, he said.
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While some victims’ rights advocates have argued that victims would be better served not by a constitutional amendment but by more funding for victims’ services, supporters of Marsy’s Law say the amendments not only give victims greater ability to participate but also lead to investments in notification systems like that and in victim services.
“My belief is that today in South Dakota, there are more resources for victims than before Marsy’s Law was implemented,” Sheriff Milstead said.
Stateline, an initiative of the Pew Charitable Trusts, contributed.