IS MARSY’S LAW THE BEST WAY TO PROTECT CRIME VICTIMS IN THE CRIMINAL JUSTICE SYSTEM?

“Marsy’s Law” is an effort to improve crime victims’ rights by giving victims constitutional rights equal to that of the accused.[1]  At first blush, Marsy’s Law seems like a no-brainer: who would be opposed to helping victims? But the fact is, crime victims already have rights to protect them in all fifty states.[2] What Marsy’s Law seeks to do is to amend the United States Constitution to elevate victims’ rights to those of the accused.[3] But giving victims rights equal to those of a criminal defendant is a slippery slope, with defendants’ lives on the line. 

Marsalee Ann Nicholas was a University of California Santa Barbara student murdered by her ex-boyfriend.[4] After being arrested, the State of California released Marsy’s murderer on bail, without notifying Marsy’s family. On the day of the funeral, Marsy’s mother was confronted by her daughter’s murderer while in the check-out line at a grocery store.[5] Understandably angered that they were not notified of the murderer’s release from jail, the family set off to improve crime victims’ rights. Dr. Henry T. Nicholas III, Marsy’s brother, then founded “Marsy’s Law.”[6]

Today, eleven states have amended their constitution to include Marsy’s Law.[7] This article will explore Marsy’s Law’s provisions, discuss its constitutional ramifications, and demonstrate that Marsy’s Law is not only unnecessary, it is a dangerous experiment with unknown consequences.

California is the first state to have passed Marsy’s Law, in 2008.[8] The constitutional amendment includes seventeen enumerated rights for crime victims, including 1) the right to have their safety considered in fixing the amount of bail; 2) the right to refuse an “interview, deposition, or discovery request by the defendant”; and 3) the right to be heard at any proceeding, including bail, sentencing, and any post-conviction hearing.[9] Since then, provisions of Marsy’s Law has been approved by twelve additional states: Illinois, Ohio, Montana, North Dakota, South Dakota, Nevada, Oklahoma, Florida, Georgia, North Carolina, Pennsylvania, and Wisconsin.[10] However, despite Marsy’s Law being approved by voters in these states, two, Montana and Pennsylvania, have yet to amend their constitutions.[11]  

The provisions in Marsy’s Law are consistent in the states that have adopted the legislation. In addition to the rights listed above, others include the right to “proceedings free from unreasonable delay and a prompt conclusion of the case,” the right to confer with the prosecutor, and the right to be notified of the release or escape of the accused.[12]But, despite the seemingly well-intentioned rights conveyed by Marsy’s Law, many commentators think the law could do more harm than good.[13] As Holly Welborn, policy director of the ACLU stated, “[i]t undermines our system of justice as we know it.”[14]

Co-Equal Rights: The Criminal Defendant and the Victim 

Marys’s Law is appealing to many because of the sense of fairness it portrays.[15]  But victims’ rights and defendants’ rights exist for different reasons, and these differences are critical.[16] To understand the potentially negative impact of Marsy’s Law on a defendant’s rights, it is important to understand the purpose of both the victim’s and the defendant’s rights. 

The criminal defendant is entitled to a presumption of innocence, and the constitution affords the defendant with due process rights. The presumption of innocence standard stems from the defendant’s due process rights and exists as a check on the government’s extreme power.[17] Given that the government may deprive a criminal defendant of their fundamental right to liberty, the presumption of innocence protects the defendant from assumptions of guilt before the government has proven its case.[18] The defendant’s due process rights and the presumption of innocence, therefore, both seek to protect the defendant from the extreme power of the government.[19]  On the other hand, victims’ rights exist for an entirely different purpose.[20] As the ACLU describes, victims’ rights exist to ensure the victims’ injuries are redressed.[21]

Stating that victims’ rights should not be equal to a criminal defendant’s rights is not downplaying the victim’s injury or suffering. Indeed, ethical lawyers understand the pain a victim of crime experiences through the criminal proceeding.[22] The problem Marsy’s Law creates, however, is that in elevating a victim’s rights to the same level as a criminal defendant’s, the defendant may lose their presumption of innocence. “If someone is presumed to be the victim of a crime before a jury returns a verdict, then the accused is presumed guilty, not innocent.”[23] Louis Kelly, the Commonwealth’s Attorney for the 54th Judicial Circuit shares this concern that Marsy’s Law could alter the presumption of innocence, the standard that “lies at the core of our criminal justice system.”[24] Indeed, while victims deserve to be heard and informed as to the trial proceedings, “ensuring rights for crime victims need not be, and must not be, done at the expense of the fundamental due process rights [of the defendant].”[25]

Should We Elevate Victims’ Rights to the Constitutional Level?

Proponents of Marsy’s Law argue that, despite federal and state statutes creating rights for victims, Marsy’s Law is needed because “current law isn’t good enough” and because “[s]tatutes can more easily be ignored than constitutional amendments.”[26] But if current law “isn’t good enough,” opponents argue that the answer should be to improve the current legislative framework, not to amend the constitution.[27] 

Opponents of Marsy’s Law, on the other hand, argue that there is not a compelling need to amend states’ constitutions, because many, if not all of the rights contained in Marsy’s Law are already in place via statutes.[28] If current statutes are inadequate, the proper, more prudent response is to strengthen them through the legislative process.[29] 

Changing the constitution brings with it concerns of the unknown. Lawmakers, although having good intentions, cannot foresee every consequence of legislative action. When these unforeseen consequences arise, legislatures can more easily respond by amending a statute. With Marsy’s Law, it will be much harder to address unforeseen consequences because such adjustments would require another constitutional amendment, which can only be done via a statewide ballot referendum.[30]

With Marsy’s Law making its way into states’ constitutions, the criminal justice system will likely undergo a vast transformation and making necessary adjustments could prove to be exceedingly difficult. We can only hope that elevating victims’ rights to the constitutional level will not diminish defendants’ due process rights, and will not result in unfair, prejudicial trials.

 FOOTNOTES

[1] What is Marys’s Law?, Marcy’s Law, https://www.marsyslaw.us/what_is_marsys_law (last visited Oct. 22, 2020).

[2] Victims’ Rights, Pretrial Justice Center for Courts Law, https://www.ncsc.org/pjcc/topics/victims (last visited Oct. 22, 2020).

[3] Top 5 Reasons to Vote NO on Marsy’s Law, ACLU, https://www.aclupa.org/sites/default/files/field_documents/aclu-pa_marsys_law_-_top_five_reasons_to_vote_no.pdf (last visited Oct. 22, 2020).

[4] About Marsy’s Law, Marcy’s Law, https://www.marsyslaw.us/about_marsys_law (last visited Oct. 22, 2020).

[5] Id.

[6] Id.

[7] Marsy’s Law for All, Ballotpedia, https://ballotpedia.org/Marsy%27s_Law_for_All (last visited Oct. 22, 2020) (stating the following states have amended their constitutions: California, Nevada, North Dakota, South Dakota, Oklahoma, Wisconsin, Illinois, Ohio, North Carolina, Georgia, and Florida).

[8] Id.

[9] Cal. Const. art. I, § 28.

[10] See Marcy’s Law for All, supra note 8.

[11] See Montana Assoc. of Counties v. State by and through Fox, 404 P.3d 733, 748 (Mont. 2017) (holding that the method of approving Marsy’s Law violated the separate-vote requirement of the Montana constitution); Matt Miller, ‘The voices of the people should be heard:’ Pa. judges hear arguments on Marsy’s Law victim rights referendum, Pennsylvania Real-Time News,https://www.pennlive.com/news/2020/06/the-voices-of-the-people-should-be-heard-pa-judges-hear-arguments-on-marsys-law-victim-rights-referendum.html (June 11, 2020) (Marsy’s Law amendment is currently pending review by the Pennsylvania Supreme Court after the American Civil Liberties Union of Pennsylvania and the League of Women Voters challenged its constitutionality).

[12] See, e.g., Oh. Const. art. I, § 10a; Nd. Const. art. I, § 25; Ok. Const. art. II, § 34. 

[13] Interview with Louis Kelly, Commonwealth Attorney, Commonwealth of Kentucky, in Burlington, Ky. (Oct. 23, 2020); Anne Teigen, Rights for Crime Victims on the Ballot in Six States, National Conference of State Legislatures, (Oct. 12, 2020), https://www.ncsl.org/blog/2018/10/12/rights-for-crime-victims-on-the-ballot-in-six-states.aspx (“Although well intentioned, the process leading to [Marsy’s Law] passage deprived Montana voters of the ability to consider the many, separate ways it changed Montana’s constitution or explain the significant administrative, financial, and compliance burdens its unfunded mandates imposed on state, county and local governments while jeopardizing the existing rights of everyone involved with the criminal justice system,’ said one of the petitions in a press release.”) (citations omitted).

[14] Sophie Quinton, ‘Marsy’s Law’ Protections for Crime Victims Sound Great, but Could Cause Problems, The Pew Charitable Trusts, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2018/10/12/marsys-law-protections-for-crime-victims-sound-great-but-could-cause-problems (Oct. 12, 2018).

[15] Top 5 Reasons to Vote NO on Marsy’s Law, supra note 3.

[16] Id.

[17] Id. at 724.

[18] Shima Baradaran, Restoring the Presumption of Innocence, 72 Ohio St. L. J. 723, 724 (2011).

[19] Top 5 Reasons to Vote NO on Marsy’s Law, supra note 3.

[20] Id.

[21] Top 5 Reasons to Vote NO on Marsy’s Law, supra note 3. (“Victims’ rights, however, are intended to ensure recovery for individuals…”).

[22] Kelly, supra note 14.

[23] Top 5 Reasons to Vote NO on Marsy’s Law, supra note 3 (emphasis in original).

[24] Kelly, supra note 14 (“My biggest concerns with Marsy’s law is that it could potentially impact the presumption of innocence that lies at the core of our criminal justice system. While I am a firm believer that victims of crime need to have a voice in criminal prosecution, I am concerned about unforeseen and unintended consequences that this amendment could create.”).

[25] Id.

[26] Quinton, supra note 15.

[27] Angela M. Rea, Marsy’s Law is designed to deceive us. The problem it’s supposed to fix doesn’t exist, Courier Journal,https://www.courier-journal.com/story/opinion/2020/10/12/marsys-law-weakens-your-rights-if-accused-crime-vote-no/5942891002/ (Oct. 12, 2020); Kelly, supra note 14 (speaking of Kentucky’s current crime victims’ statutes, “[T]o the extent Kentucky’s current laws are insufficient or need strengthening, I believe it would be much more prudent to obtain them through statutory amendments via the legislative process. Statutory changes are much easier to come by than constitutional amendments and therefore any deficiencies or unintended consequences of these changes could be more quickly and efficiently addressed if enacted via statute as opposed to a constitutional amendment, which can only be enacted via a statewide ballot referendum.”).

[28] Kelly, supra note 14; Victims’ Rights, Pretrial Justice Center for Courts, https://www.ncsc.org/pjcc/topics/victims (last visited Oct. 26, 2020) (explaining that victims’ rights contained in state statutes relate to notice of proceedings, participation in court proceedings, and restitution and compensation, which are all included in Marsy’s Law).

[29] Kelly, supra note 14.

[30] Id.