Crime Victims' Rights on Ballots in Several States

Half a dozen states could enshrine so-called Marsy's Law provisions in their constitutions in November.
by | September 26, 2018
The courthouse in Robeson County, N.C., one of six states with ballot initiatives this year that would enshrine crime victims' rights into the state Constitution. (AP/David Goldman)

SPEED READ:

  • Voters in six states -- Florida, Georgia, Kentucky, Nevada, North Carolina and Oklahoma -- will vote on a so-called Marsy's Law in November.
  • These measures would enshrine crime victims' rights in state constitutions.
  • Supporters hope eventually to amend the U.S. Constitution.
 

A movement to enshrine victims' rights in state constitutions has momentum all across the country -- even as the movement's biggest champion faces criminal charges himself.

Voters in six states in November will decide whether to approve constitutional amendments known as Marsy's Law. They are named after Marsy Nicholas, a California woman who was murdered in 1983 by an ex-boyfriend who had been released on bail without her knowledge.

The provisions of the law vary by state but often guarantee victims or their families the ability to speak at more hearings and proceedings and the right to know a defendant's whereabouts at all points during the legal process. Many of these laws also tighten requirements for parole.

The law was pioneered in California a decade ago but has since been adopted by voters in four other states. (It was also approved by voters in Montana in 2016 but dismissed by a judge last year on a technicality.) Its primary driver has been Marsy's brother, Henry Nicholas, the billionaire cofounder of Broadcom and founder of Marsy's Law for All, a national group that promotes the cause. Nicholas was arrested in August on suspicion of drug trafficking.

Despite the bad publicity this has brought, the work of promoting Marsy's Law continues, says Henry Goodwin, national communications adviser for the group.

"The victims' rights cause is bigger than any one man," Goodwin says. "It's not going to interfere with the work of advocates. It's not going to affect their hard work and dedication."

The group's ultimate goal is to enshrine Marsy's Law in the U.S. Constitution. Versions of the law appear this November on ballots in Florida, Georgia, Kentucky, Nevada, North Carolina and Oklahoma. In states such as Kentucky and North Carolina, these bills enjoyed strong bipartisan support from legislators on their way to the ballot. But Marsy's Law failed to win approval this year in the Idaho and New Hampshire legislatures.

Some members of the law enforcement and legal communities oppose Marsy's Law, arguing that it puts a strain on legal and court systems.

"We definitely think it will clog the system," says Kate Miller, advocacy director of the ACLU of Kentucky. It would be better if more money was actually devoted to aiding victims than on campaigning for them, she says. "The only victims who are going to have access are those with private attorneys to represent them."

Indeed, South Dakota considered repealing Marsy's Law, having found that it put a strain on county resources. The law didn't differentiate among victims of different types of crime, so those touched by cases involving petty theft or trespassing had to be accorded the same amount of attention as victims of more serious crimes, such as rape. Lawmakers worked out a compromise with Marsy's Law for All, and a revised constitutional amendment was approved by voters in June.

Opponents also argue that Marsy's Laws are redundant, with many of their provisions already included in state laws. But Goodwin says those existing protections don't go far enough. Marsy's Law essentially puts victims' rights on par with defendants' rights by enshrining them in the constitution.

That's a problem, Miller argues, because it's not clear what should happen when the constitutional rights of the accused and the victims come into conflict. The reason rights are enshrined for the accused is to protect them from the powers of the state. Victims, presumably, need no such protection.

Politicians and voters tend to be less concerned about the rights of those accused of crimes, however, and more sympathetic to the victims of crimes. There appears to be little doubt that, where voters are offered the chance to decide on something that promises to protect victims' rights, a comfortable majority of them will support it.

In past years, Henry Nicholas has spent an average of about $2 million supporting each of the successful campaigns. Despite his legal troubles, this year's campaigns are well-funded, while the public defenders' and constitutional rights groups that oppose Marsy's Law are barely able to muster a campaign against it.

"We haven't done a lot of education around it," Miller says, "because we feel pretty hopeless about defeating it on the ballot."

For a summary of November's most important ballot measures, click here.