by Matt Clarke

California billionaire Dr. Henry T. Nicholas and his mother entered a grocery store in 1983, a few days after his sister, Marsalee, was murdered. There they ran into her boyfriend, who had been arrested for the crime. They were surprised, shocked. Just coming from a visit to “Marsy’s” grave, they didn’t know he had been granted bail and released.

Nicholas, who founded Broadcom, which manufactures semiconductors for the communications industry, spent the next 25 years – and $4.9 million of his own money – to get California voters to pass Proposition 9, a victims’ bill of rights known as Marsy’s Law that was approved in 2008. The law enshrines a number of victims’ rights in the state constitution, including:

• A right to be notified of court proceedings and to be heard at them

• A right to be notified if the accused is released or escapes

• A right to be treated with fairness and with respect for the safety, dignity and privacy of the victim

• A right to reasonable protection from the accused or any person acting on the accused’s behalf

• A right to know the status of the investigation or case

• A right to be informed of these rights

Following the success of Proposition 9 on the California ballot, Nicholas set up and financed Marsy’s Law for All, an organization dedicated to amending the U.S. Constitution and the constitutions in other states to incorporate similar victims’ rights laws. So far, at a cost of about $2 million each, five more states have adopted some version of Marsy’s Law – Ohio, Illinois, Montana and both Dakotas. According to an April 2017 article by Oklahoma Watch, similar initiatives are being considered in Georgia, Hawaii, Kentucky, Nevada, Oklahoma and Wisconsin.

Critics note that Marsy’s Law has led to delays in trials and larger case backlogs, driving up costs in states that have adopted it. State’s Attorney Mark Vargo in Pennington County, South Dakota said his 100,000-resident county had to hire four additional employees – at an annual cost of $161,000 – just to notify victims of their rights and keep them apprised of their case status.

Aaron Birst, head of the North Dakota State’s Attorneys Association, said the passage of Marsy’s Law in his state resulted in criminal cases being delayed.

“It has slowed things up,” he stated. “It didn’t stop things altogether, but it has definitely put a little pause on a number of cases. As of right now, our current staffs have absorbed the extra workload, but there is potential for increased costs to beef up the system.”

The city attorney’s office in Great Falls, Montana announced Marsy’s Law would require it to spend $90,000 annually on additional prosecutors.

Victims’ rights advocates often stress the need to balance the government’s respect for the rights of accused criminals with the rights of their victims. But critics note that a defendant’s constitutional rights serve mainly to prevent the government from abusing its power – power that is not wielded against victims.

Additionally, the law can sometimes overstep other constitutional limitations. After Ohio voters passed a version of Marsy’s Law in November 2017, the director of the state’s ACLU chapter questioned a provision allowing victims to “refuse an interview, deposition or other discovery request made by the accused.”

“There are perfectly logical and reasonable reasons why somebody might seek information from a crime victim when they are being accused of a crime,” said Ohio ACLU lobbyist Gary Daniels. “That’s just part of the everyday give and take of the justice system.”

After Montana voters approved – by a margin of 2-to-1 – a version of Marsy’s Law in November 2016, the state ACLU chapter was joined by the Montana Association of Counties and the Montana Association of Criminal Defense Lawyers in a lawsuit claiming the aggregation of victims’ rights in one ballot measure violated the state’s single-issue ballot requirement. The Montana Supreme Court agreed and voided the law in November 2017.

In South Dakota, state Rep. Mark Mickelson intends to introduce legislation in 2018 that would require victims to “opt in” to their Marsy’s Law rights, which voters added to the state constitution in November 2016. He said the law’s extension of rights to victims – and their families – cost nearly $5 million in 2017 alone.

“The concepts behind Marsy’s Law are unobjectionable,” Rep. Mickelson remarked, but he added the law as it currently stands is “costing the counties money they don’t have, for a purpose they probably don’t need to be doing.”

He proposed a system like the one currently used across the state line in North Dakota. There, victims receive a card outlining their Marsy’s Law rights during their first contact with law enforcement. It is then left up to them to exercise those rights. In a report to state lawmakers in October 2017, Bismark Deputy Police Chief Randy Ziegler said just 11 victims had opted to exercise their rights since the law went into effect – a rate of one per month, an impact he called “very, very minimal.”

However, Rozanna Larson, a prosecutor in Ward County, North Dakota, testified at a legislative hearing that some of her limited time must now be spent redacting victims’ names from documents. She also said that if a defendant cannot confront a victim whose identity is concealed, the case would likely be dismissed – a result of Marsy’s Law she especially lamented because the victims’ rights it established were redundant to protections already provided under pre-existing laws.

Just before Marsy’s Law was voided in Montana, another prosecutor there – Cascade County Attorney Josh Racki – called it “a troubling thing” that the law may actually make it “easier on defendants to commit crimes, especially when victims won’t cooperate.”

But others insist laws establishing victims’ rights are needed, including Cheryl Cole-Candelaresi, whose husband, a Cincinnati police officer, was murdered in 1974. She and her family learned that one of his killers was freed from prison in 1994 after reading a newspaper report – too late to weigh in on his release.

“For him to be walking out freely, it was just so horrifying,” she said.

Meanwhile, Wisconsin’s state senate approved its version of Marsy’s Law in November 2017. Senate Joint Resolution 53 now moves to the state Assembly. If it passes there – and if it is then approved again by both houses of the legislature in two years – it will be placed on a statewide ballot for a voter referendum. Wisconsin passed the first victims’ rights bill in the U.S. in 1980, and thirteen years later adopted constitutional protections for victim privacy and notification about their cases.

A sponsor of the resolution, state Senator Van H. Wanggaard, said Marsy’s Law “levels the playing field” for victims.

Others, however, question whether the playing field was unlevel, and whether the law does more harm than good. 

Sources: www.usnews.com, www.jsonline.com, www.oklahomawatch.org, www.cleveland.com, www.wcpo.com, www.missoulian.com, www.ksfy.com, Great Falls Tribune, Madison Capital Times

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