Marsy’s Law of Unintended Consequences

December 1st, 2017 by 8 Comments

By Benita M. Dodd

It’s hard to fathom the depth of the pain and suffering of crime victims and families left behind. For Henry Nicholas, the experiences of his family after his sister was murdered inspired his mission to protect victims.

A student at the University of California, Santa Barbara, Marsalee “Marsy” Nicholas died after being shot in 1983 by her ex-boyfriend, Kerry Conley.

Marsy’s brother told The Los Angeles Times: “After the funeral service, we were driving home and stopped at a market so my mother could just run in and get a loaf of bread. And there in the checkout line was my sister’s murderer, glowering at her.”

He said the family was not told the killer had made bail; there was no obligation by the state to inform the family. Conley remained free on bail until he was convicted of second-degree murder in April 1985. Sentenced to 17 years to life, he died in prison in 2007.

Henry Nicholas, a billionaire, donated nearly $5 million toward his “Marsy’s Law” initiative for victims’ rights in California. The 2008 constitutional amendment gained nearly 54 percent voter approval. In 2009, he founded Marsy’s Law for All, whose goal is to add victims’ rights to all state constitutions and, eventually, to the U.S. Constitution.

Well-funded Lobbying Effort

Although the legislation varies, the campaign and message are similar in each state: a sophisticated, state-focused website, a well-funded lobbying effort, and crime victims and their relatives shepherded around the state and to the Legislature to share how the system has failed them. Just 15 states have victims’ rights set forth in their constitution, Marsy’s Law proponents point out.

Nicholas spent more than $5 million in Illinois, where legislators were first to vote to place a constitutional amendment on the November 2014 ballot. The 42-page Crime Victims’ Bill of Rights Amendment, approved by more than 78 percent of voters, took effect in August 2015. He gave his support and funds to campaigns in North Dakota ($2.5 million), South Dakota ($2 million) and Montana ($2.4 million).

No concerned voter opposes “victims’ rights.” In November 2016, “initiated” constitutional amendments passed in Montana (66 percent) North Dakota (62 percent) and South Dakota (60 percent). Just last month, Ohio’s initiated constitutional amendment won 82 percent approval. (In states with initiated amendments, a certain minimum number of voters must sign a petition to bring about a vote.)

Voters in Oklahoma and Nevada will consider legislatively approved constitutional amendments in 2018, and advocates are campaigning in several other states, including Georgia, where the House’s far-reaching proposed amendment went nowhere in 2016. That included an expanded (and costly for government) category of “victim,” a (time-consuming) right for victims to confer with the attorney for the government, and would have violated the Sixth Amendment right to face one’s accuser.

A less onerous 2017 proposal passed the Senate 50-4 and is in the House; if it passes in 2018, it will be put to voters in November. The proposal gives victims the right to “reasonable and accurate” notice of proceedings; to be present and heard at any public proceeding involving the crime, and to seek court intervention if they believe their rights are being violated.

Proceed Cautiously

Advocates for Marsy’s Law share emotional experiences as they search for closure. But emotions should not drive legislation, and especially not constitutional amendments. Lawmakers must proceed cautiously and question whether the Constitution is the appropriate place to embed a broad, expensive mandate.

Just last month, Montana’s Supreme Court struck down its amendment as unconstitutional. More important, the Montana Association of Counties was part of a group seeking to void that law, citing, among other burdens, the cost of more attorneys and support staff for victims and of detaining more people accused of crimes. In South Dakota, there’s conflict over the media’s First Amendment rights and victims’ privacy rights.

A constitutional amendment is no place to risk infringing the rights of someone accused of a crime. The accused have the presumption of innocence until convicted; their life and liberty are at stake. For many suffering victims and their surviving families, there’s a fine line between justice based on a court of law and vengeance based on the alleged wrongdoing. And sometimes, accusations are falsified by “victims.” It’s why anything that erodes the constitutional rights of the accused puts all Georgians at risk of unjust punishment. 

Since 1995, Georgians have been protected by a Crime Victim’s Bill of Rights. Quoted in Patch news service, Georgia State Rep. Mandi Ballinger said, “As a former victims’ rights advocate in the District Attorney’s Office, I can tell you that Georgia has one of the strongest victims’ rights statutes in the country.” Further, the state has a Victim Information Program and metro counties participate in the VINELink victim information network.

Since 2011, Georgia legislators have made nationally recognized advances in criminal justice reforms, understanding that it’s time to get “smart on crime.” Part of being smart on crime is realizing that while law enforcement and its agencies fall short in some areas of the victim rights’ statute, that should be resolved with a targeted legislative remedy, not a constitutional amendment that quite possibly could undo years of progress.

Benita Dodd  is vice president of the Georgia Public Policy Foundation, an independent, nonprofit think tank that proposes market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the view of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.

© Georgia Public Policy Foundation (December 1, 2017). Permission to reprint in whole or in part is hereby granted, provided the author and her affiliations are cited.

8 thoughts on “Marsy’s Law of Unintended Consequences

  1. I am researching the ballot amendments to guide my vote, and I am looking for opposing viewpoints, hoping to avoid unintended consequences.

    Please help me understand – in what way would the ballot measure allow the possibility of infringing the rights of the accused? After the Kavanaugh debacle, I am very sensitive to misuse of process by accusers, and to the need to defend the presumption of innocence. Your article mentions a problem with the 2016 proposal (violation of right to face the accuser) but does not cite any such problems with the measure now on the ballot.

    Thank you for your thoughtful approach, and your efforts to provide relevant information that allows informed decisions.

      1. I disagree, Lyn. I came here FROM ballotpedia in hopes of getting the answer to Frank’s exact question. There’s just an assertion that it may infringe the rights of the accused without any explanation of how or why. It’s frustrating that the language is so vague, like we’re supposed to just say “Oh, well, that would be bad” and vote no. I haven’t seen anything that suggests an interference with due process.

        1. Well, I think the issue is that the “alleged” victim gets to be informed about the “alleged” perpetrator. It is not worded to give *only* a victim the right to know if a convicted attacker is set loose; this law definitely seems to also give rights to a person who is simply accusing someone and therefore takes away the rights of someone who is supposed to be considered innocent until proven guilty. If they changed to language to say the “victim of a convicted perpetrator” I think it would have more universal support.

      2. Lyn, I disagree. I came here FROM ballotopedia with Frank’s exact question, and the language there is as vague as it is here. I do not understand how this might infringe on the rights of the accused or how it might convict them without a trial. All I see is that the victims have the right to be kept aware of the trial process and may speak if they want to. So the opposition argument looks to me like a lot of unsupported assertions.

  2. If you don’t understand, you need to either vote no or not vote at all. It has been clearly explained how this bill could infringe upon citizen’s rights. Such as supporting the guilty until proven innocent mentality, particularly when someone comes forward with false accusations. It can also interfere with court proceedings and sentencing. Such as shaming a judge into passing down a tougher sentence when it isn’t warranted. The list goes on, I’m tired of typing. Law isn’t designed to enforce or support people’s emotions, only their actions. Dangerous road if we set this precedence. Georgia has already had one of the toughest victim’s bill of rights in place since 1995. This is completely unnecessary. Don’t be a sheep. Look at all the facts and draw your own conclusion.

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