Marsy’s Law will appear on the 2018 voting ballot for the state of Kentucky on Tuesday and state officials seem divided over the proposed amendment. For many opponents, the ballot offers little information to voters regarding the potential consequences of voting for an amendment designed to give victims more rights in criminal cases. The problem is, opponents say, there are unintended consequences for the amendment.
According to the Marsy’s Law official website, marsyslaw.us, Marsy’s Law was named after a California murder victim named Marsy Nicholas. Nicholas’ mother saw her daughter’s accused killer in a grocery store only a week after her death. The mother reported she was threatened by her daughter’s accused attacker. Because of this, a 2008 California legislation passed Marsy’s Law, giving crime victims a variety of rights providing protection, safety, justice and restitution. The ACLU says that victims’ rights are not rights against the state but, rather, rights against another individual.
According to Ohiojudges.org, Marsy’s Law will mean law enforcement officers make initial contact with victims, providing them with a pocket-sized “Marsy’s card” that lists a summary of a victim’s new rights under the law–similar to the “Miranda cards” presented to accused offenders. Officers would then have to determine whether the victim wants to invoke their Marsy’s Law rights, and the decision would be included in the officer’s paperwork. Ohiojudges.org says that since Marsy’s Law would be a constitutional right, it means the government would need to protect it, whether or not the victim requests that protection. State legislatures must approve a constitutional amendment before it goes to voters.
Ohiojudges.org also mentions that because Marsy’s Law mandates that victims’ new rights include a “reasonable and timely notice” and “to be heard in public proceedings, including release, plea, sentencing, disposition or parole” that this will create an administrative “quagmire” that will clog the court system. The site uses the example of bonds normally being set immediately for the accused after their first appearance with counsel–under Marsy’s Law, however, “prosecutors, law enforcement and court officials would have to track down all victims before the judge could even consider bond.”
In light of the forthcoming vote, the Kentucky Association of Criminal Defense Lawyers (KACDL) submitted an Aug. 13 press release stating they had filed legal action to stop the “misleading effort to rewrite our state constitution and permanently skew the justice system.”
According to an article in the Lexington Herald Leader, Franklin Circuit Judge Thomas Wingate ruled that votes for this amendment should not have legal effect because the ballot language proposed was too vague and didn’t adequately explain the details of the amendment.
Moreover, the KACDL says the amendment is not only too vague in its wording, but that it’s an improper and unwise amendment of the Kentucky state constitution. Marsy’s Law, KACDL says, would impact the existing criminal justice system that’s been outlined in the state constitution, as well as the three branches of government in the United States Constitution, which the KACDL says are necessary to sustain the quality of our American system of justice.
“Though it is not perfect, the existing criminal justice system produces fair results for the Commonwealth, for victims of crime and for persons accused of crime,” the release states. “The KACDL lawsuit reveals two fatal flaws to the ‘Marsy’s Law’ amendments. First, the proposed amendment would significantly change the criminal justice system. Second, the amendment is to be presented to the voters in a confusing manner that fails to inform the voting public how that change would take place. The electorate deserves a fair chance to know what they’re voting for.”
According to the Forward Kentucky website, those in favor of Marsy’s Law say the amendment gives crime victims rights in the judicial process, such as considering the victim’s safety when setting bail for alleged suspects, notifying the victim of court or release dates and giving the victim the right to be heard at hearings.
The site also explains that proponents support the amendment because it adds 10 protections to the Kentucky constitution, including those formerly mentioned. Proponents say it will restore power to victims and help them to heal.
Because Judge Wingate ruled that the wording on the ballot was too vague, officials are not able to certify the results from this year’s Nov. 6 election, although they will be able to tally the results and determine whether Kentuckians voted in favor or against it.
“It’s on the ballot. We will not certify the results to the state until the lawsuit has passed,” said Richard House, Chief Deputy Clerk of the Daviess County Clerk’s Office.
So far, five states have passed some version of Marsy’s Law, and four other states will consider the vote in this year’s election. According to several news sources, South Dakota voters passed the law in 2016, hoping to give rights to victims who’d suffered a number of criminal acts. However, the “unintended consequences” the KACDL spoke of tie indirectly to what happened in South Dakota following the amendment’s passing.
The Seattle Times said the law created bureaucratic problems across the state of South Dakota in that officials have had to spend more time updating victims of the proceedings for each case — even crimes regarding petty theft and trespassing — than helping victims of violent crime navigate the criminal justice system.
The amendment also affected three of the larger counties in South Dakota, which had to hire new people to work with victims. Privacy provisions in the amendment ended up curtailing information that several law enforcement organizations were able to release to the public in helping them solve crimes. Prosecutors were also forced to track down a higher number of victims about their case, which was both timely and costly, according to the article.
In June 2018, South Dakota voted on Amendment Y, which revised Marsy’s Law and, in turn, certain provisions relating to the right of crime victims. According to an ABC article, the revisions will benefit both crime victims, court systems and those working for both.
In the Kentucky election, the Marsy’s Law amendment will be worded as follows:
“Are you in favor of providing constitutional rights to the victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and have a voice in the judicial process?”
House of the Daviess County Clerk’s Office says for voters questioning the amendment or wanting more information while at the voting polls, no such guidance will be available.
“You can’t answer a question at the voting polls,” House said. “They [voters] should do a little research beforehand.”
