Despite Overwhelming Legal Opposition, Voters Gave Crime Victims Their Own Bill of Rights

Voters in three states approved "Marsy's Law," which ensures victims and their families are informed of developments in a criminal case.
by | November 9, 2016
A woman speaks in support of a bill, which eventually died, that would have created constitutional rights for crime victims in Hawaii. (AP/Marina Riker)

Read all of our coverage on 2016 ballot measures at governing.com/ballotmeasures.

Should victims of crime have their own bill of rights?

Voters in Montana, North Dakota and South Dakota all answered in the affirmative, amending their state's constitutions.

The near-identical ballot measures are part of a national campaign bankrolled by California tech billionaire Henry Nicholas. Despite opposition from a diverse coalition of defense attorneys, criminal prosecutors, judges and civil rights advocates, all three initiatives passed with at least 60 percent of the vote.

Proponents dubbed the measures as "Marsy’s Law," referring to Nicholas’ sister who was stalked and murdered in 1983 by a former boyfriend. A week after the murder, Nicholas and his mother encountered her killer out on bail and shopping at the grocery store. They didn't even know he was out of jail.

A central idea of the Marsy’s Law proposals is that victims and their families would be informed of developments in a criminal case, including when courts release a suspect on bail.

"The whole point of this is to give victims equal level in the constitution to people accused or convicted of a crime," said Gail Gitcho, senior adviser for the national Marsy’s Law campaign. Neither the U.S. Constitution nor 15 state constitutions address the rights of crime victims, but they do take into account the rights of people accused and convicted of a crime.

The measures had support from elected officials in both parties, including U.S. Sen. Steve Daines of Montana and more than 30 state legislators, county commissioners and county sheriffs.

Voters in California and Illinois had passed versions of Marsy’s Law, and efforts are underway to put it on the ballot in Georgia, Kentucky and Nevada. Last year, proponents tried to get Marsy's Law passed in Hawaii, but it died in the legislature after both the state attorney general and the Department of Public Safety opposed it. Eventually, Nicholas hopes to amend the U.S. Constitution with the same bill of rights for crime victims.

Nicholas invested at least $4 million for this year's campaigns, and proponents formed political action committees in all three states. Though there was widespread opposition from the legal community, few groups raised money to defeat the measures.

Polls conducted in Montana, North Dakota and South Dakota found at least 70 percent of respondents supported the measures. "It really doesn’t surprise me that it’s polling well," said Caitlin Borgmann, executive director of the American Civil Liberties Union of Montana, which opposed Marsy's Law. "It’s difficult to take a position against it because it sounds like you’re opposing victims."

Opponents did exist, though.

In general, opponents warned that these measures could result in unintended consequences. In North Dakota, several victims advocacy groups joined state's attorneys and public defenders to criticize Marsy's Law as an unfunded mandate that could clog the legal system. According to the North Dakota Legislative Council, the new requirements would cost state and local governments $5.2 million through 2019. The South Dakota State's Attorneys Association, the South Dakota Association of Criminal Defense Lawyers, and the Minnehaha County Commission -- which represents the most populous locality in the state -- all opposed Marsy's Law for the same reasons.

Critics in all three states raised concerns about the measures' definitions of "crime" and "victim." The ballot language put a violent crime on the same level as low-level property crime and expanded the definition of a victim to include family members of the victim as well as other people "with a relationship to the victim that is substantially similar" to that of a family member.

Those definitions, critics argued, could result in courts having to communicate more often with a broader range of people about a wider range of cases -- or else face the possibility of litigation by the victims.

In an op-ed for The Missoulian, Jim Nelson, a retired state Supreme Court Justice in Montana, called Marsy’s Law “a solution in search of a problem.” He noted that the state already had laws that covered most of what was in the ballot measure.

Nelson also took issue with the common assertion by Marsy's Law advocates that the legal system neglected crime victims and failed to treat them with dignity and respect.

“It is wrong to assume that police officers, prosecutors and judges, among others, presently ignore the plight of crime victims,” he wrote. “They don’t, based on my 40-plus years of experience as a former prosecutor working with state and federal law enforcement and as Supreme Court justice.”

Read all of our coverage on 2016 ballot measures at governing.com/ballotmeasures.