Tuesday, October 16, 2018

Marsy's Law ballot initiatives promise to protect crime victims, but could cause legal problems too

Six states will soon vote on ballot initiatives to grant crime victims certain rights under the state constitution equal to those of criminal defendants, like the right to be treated fairly, confer with prosecution, and attend important court proceedings. But some legal experts worry that approving "Marsy's Law" amendments "could set up a clash over core aspects of the U.S. legal system, such as the accused person’s Sixth Amendment right to due process and the right to be presumed innocent until proven guilty," Sophie Quinton reports for Stateline.

Marsy's Law is named for billionaire Henry Nicholas's sister, who was murdered in 1983. Nicholas's mother ran into Marsy's killer in public a few days after the murder; no one had notified her that he had been released on bail. Since then, Nicholas has spent $27 million funding victims' rights amendments in 12 states, Quinton reports. In Kentucky yesterday, a judge ordered that the results of the referendum not be certified because the ballot language specified by the legislature is vague and  doesn't make clear that the law would add 10 new rights for crime victims.

Because criminal cases are technically between the prosecutor and the suspect, victims and their families have not historically had many rights during the process. Over the past 40 years, laws have been enacted by all states and the federal government to give victims more rights, such as the right to be notified when a defendant is out on bail. But some say these laws aren't enough, and that enacting a constitutional amendment rather than a statute will make it more likely for victims to receive the protection and notification they deserve. On the other hand, "the American Civil Liberties Union, defense attorneys and some prosecutors say states already are doing plenty to protect victims, and that the proposed amendments could make it harder for the accused to get a fair trial," Quinton reports.

John Piro, the chief deputy public defender for Clark County, Nevada, told Quinton that Marsy's Law would interfere with defendants' due process rights by allowing victims the right to be present and heard in court before the defendant has entered a plea. "Now the prosecutor is going to be unduly influenced by a passionate person who wants to see vengeance — they’ll call it justice — handed out," he said. Research backs Piro up: emotional statements in court can make jurors more eager to punish defendants, especially if the victim is white.

Marsy's Law can trigger logistical problems too. In South Dakota, defendants ended up staying in jail longer while courts waited for victims to be notified about bail for even minor crimes like vandalism, Quinton reports. But University of Utah law professor Paul Cassell, a victims' rights expert who has supported Marsy's Law, told Quinton he hasn't heard of the law leading to major problems in most states. The law is beneficial, he said, because it allows victims to refuse to share personal information with the defense that could put them in danger, such as their address or phone number.

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