The 2018 midterms saw the passage in several states of Marsy’s Law: a law that elevates the “rights” of victims at the expense of criminal defendants. Marsy’s Law gives crime victims certain procedural rights, such as the right to be notified of a defendant’s release from custody and the right to withhold evidence. Voters in Florida, Georgia, Kentucky, Nevada, North Carolina, and Oklahoma approved Marsy’s Law as a ballot measure in the 2018 midterms. Voters in California, Illinois, Montana, North Dakota, Ohio, and South Dakota have already approved some version of the law.

Marsy’s Law takes its name from Marsalee Nicholas, a teenage girl who was killed by an ex-boyfriend. After her death, Marsy’s parents ran into her accused killer at the grocery store, and they were upset because the government did not alert them to the fact that the state had released the accused on bail. Marsy’s Law For All is an organization devoted to advocating for the passage of the law across the country through the passage of constitutional amendments. The campaign to pass the amendments across the country is funded by Marsy’s brother, a billionaire who has spent over 71 million of his own money to advocate for Marsy’s Law.

Arguing for increased rights for victims comes at the expense of the accused, who have been caught up in a system that is extremely prejudicial towards poor people of color. Marsy’s Law attempts to create a false equivalency, in which the criminal justice system is supposed to protect both the rights of the accused and victims equally, ignoring the fact that victims are not plaintiffs in criminal matters. Rather, the state is the “plaintiff” attempting to incarcerate the accused. Advocating for victims’ rights ignores this distinction. One example of a right Marsy’s Law provides is the “right to privacy,” which the state of California has interpreted to allow victims to withhold evidence by refusing discovery, depositions, and interviews. Essentially, this prevents defendants from confronting the evidence being used against them, which violates a fundamental right of defendants in the criminal justice system. This strategy could also potentially backfire in that it would allow defendants to more easily overturn convictions based on withholding of exculpatory evidence. In South Dakota, one unintended consequence of this law has been the inability of law enforcement to gather as many tips because of the withholding of victim names out of a concern for privacy.

Another problem with the ballot measures lies in their vague nature. In Kentucky, the ballot measure reads, “Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?” Franklin Circuit Judge Thomas Wingate ruled that this question was so vaguely worded that it could not be certified as official if it passes. Despite the fact that Marsy’s Law would add ten new constitutional rights for victims, the question only asks if the voter supports vague rights for victims, such as “dignity” and “respect,” as well as “hav[ing] a voice.” What does this mean in practice? The model Marsy’s Law creates a “right to privacy” for victims but does not include an explanation of what this would mean. The law was so vague and poorly worded in South Dakota that legislators are now trying to pass an amendment to fix its problematic language. In Montana, the Supreme Court in Montana voided the constitutional amendment in October of 2017, which shows the law is often difficult for states to carry out in a constitutional manner. Additionally, the victim is not well-defined, which can lead to corporations and general members of the community being named victims. “Victim” in Marsy’s law is defined as “any person proximately harmed by the commission of a criminal offense.”

Marsy’s Law For All makes the argument that the state gives the accused many constitutional rights, while victims are not given the same rights in criminal proceedings. This analysis misunderstands the purpose of criminal proceedings, which is to determine the guilt or innocence of an accused person, and determine a punishment if guilt is found. The criminal process centers around the accused, and rights of the accused, because of the severe consequences of a guilty finding or a guilty plea. The accused face imprisonment in the U.S. system of mass incarceration and the daunting penalty of being stripped of their fundamental liberty and locked in cages. Marsy’s Law For All does not distinguish the accused from those convicted, referring to all of the accused as “criminals,” despite the fact that the accused are presumed innocent, a fundamental fact of our criminal justice system and one that our U.S. Constitution is built upon. Laws such as Marsy’s Law may appear appealing to voters on the because they refer to vague “rights for victims” without much more substance. Voters should be wary of the costs of implementing these types of statutes and the risks that come with vagueness. Voters should also recognize the purpose of the criminal justice system and the long history of procedural protections for defendants.

Written by

Regina is a 3L at HLS from Owensboro, Kentucky. She is interested in racial justice, prisoners' rights, immigration, gender equality, and economic justice. She spent her 1L summer at MALDEF and 2L summer NAACP LDF.

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