The Marsy’s Law for All national campaign for the expansion of victims’ rights is an exercise in constitutional experimentation. But because it thrives on emotional manipulation, it has continued to win over one state legislature after another—despite opposition from civil libertarians and criminal justice reform advocates.
Their opposition, however, is quickly moving from the hypothetical to the real world, as more states grapple with the collateral consequences of implementing this reactionary law.
Marsy’s Law differ from state to state but typically involve a familiar cluster of new and what critics deem extreme legal rights for crime victims—everything from privacy and notification mandates to legal representation and input on parole proceedings.
Earlier this month, the Wisconsin legislature approved sending their version of Marsy’s Law to voters next April, which, if approved, would enshrine these new victims’ rights into the Wisconsin Constitution. A similar ballot initiative will probably go before Pennsylvania voters in November. That amendment, which has the support of Democratic Governor Tom Wolf, has already been approved by the state’s house of representatives and is awaiting a senate vote before it can appear on the November ballot. The vote will likely pass, helped by tens of millions of dollars that the Marsy’s Law campaign typically spends on these ballot initiatives.
Civil libertarians and other criminal justice reform advocates, however, have consistently raised concerns about how the law undermines the due process rights of the accused and the presumption of innocence—the keystone of any just legal system. But there are other problems with these initiatives that have become impossible to ignore.
Cart Before the Horse
Since 2008, at least 10 states—including California, Illinois, and Florida—have adopted some form of Marsy’s Law into their constitutions. The model legislation is the work of tech billionaire Henry Nicholas, who founded the campaign after his sister, Marsalee, was murdered by an ex-boyfriend in 1983.
Over the last decade, Nicholas, who has serious legal issues of his own, has, according to Ballotpedia, pumped tens of millions of dollars of his fortune into his effort, going state by state convincing lawmakers and voters to give constitutional protections to victims. His endgame isn’t modest. He wants to enshrine Marsy’s Law into the United States Constitution—a truly terrifying prospect.
As critics of the bill have long argued, the language of the amendments is expansive, vague, and open to multiple interpretations, particularly its privacy protections and who is defined as a victim under the law. The Wisconsin version, for example, guarantees a long list of rights to “victims”—such as the ability to refuse discovery requests from the accused—“which shall vest at the time of victimization.” This, however, instantly raises the question of how anyone can be guaranteed victims’ rights before due process has been rendered in court. Not all victims are actually victims, of course, just as not everyone accused of a crime is guilty.
The campaign’s pursuit of constitutional amendments is particularly frightening, considering that once a constitutional amendment is enacted, it’s incredibly difficult to correct or overturn. Not surprisingly, states that have passed Marsy’s Law are experiencing mounting, unforeseen consequences that empower government and corporations at the expense of the public.
In North and South Dakota, police officers have claimed a victim’s right to privacy after incidents in which officers shot civilians. They have used the law to block the release of their own identities, undermining public transparency at a time when many communities are increasingly concerned about police violence and corruption. In both the North and South Dakota versions of Marsy’s Law, the definition of a victim is nearly limitless. Police officers have thus seized on privacy protections for victims to keep their own names out of the press.
Make no bones about it: this is a gift to bad cops. By protecting the identities of public servants who use force, Marsy’s Law makes it much harder for the media to report on whether a particular officer has a history of abuse. Cloaked in secrecy, officers who are not fit to wear their badges can continue to abuse their authority. In return, community-police relationships suffer, as the public doesn’t get the information it deserves and good police officers get smeared by the actions of a small minority.
And the problems under Marsy’s Law don’t end with police officers. In North Dakota, the state supreme court just issued a decision that appears to allow corporations to claim a victim’s right to restitution, since state law considers corporations people.
Blue Cross Blue Shield thus claimed victim status to legally compel a man to reimburse the company $27,500 for the medical costs of one of its customers whom he hurt in a fight. Critics, such as the ACLU of Nevada, have always feared that companies would flood the courts with victims’ rights claims to restitution for minor crimes, thus diverting scarce resources from flesh-and-blood victims of serious crimes in already overburdened state and local criminal justice systems.
Their concerns, once speculative, now appear prescient. Last week, the North Dakota Supreme Court ordered the defendant to pay Blue Cross Blue Shield the $27,500 it says he owed them under Marsy’s Law. The justices, however, punted on determining whether corporations can be victims under the state constitution. As one justice wrote in the opinion, “It is unnecessary to determine whether the definition of a victim under [Marsy’s Law] is limited to individuals.”
Florida, however, may have earned the distinction of having the most implementation problems with Marsy’s Law in the shortest amount of time after voters approved a constitutional amendment last November. In Tallahassee, police have interpreted the law’s privacy provision so strictly that the department is withholding any personally identifying information of crime victims, potentially harming public safety since residents aren’t getting up-to-date crime information, including the locations of crimes.
The most shocking provision of Florida’s Marsy’s Law, however, has to do with the appeals process. Due to the law’s requirement that victims have a right to proceedings free of unnecessary delays, appeals in death penalty cases have to be completed within five years once initiated. In November, Clemente Aguirre-Jarquin was exonerated for a double murder after spending 12 years on death row. If Marsy’s Law was in effect, his appeals theoretically would have been exhausted after five years and he would still be scheduled to die without any recourse. As opponents have consistently warned, Marsy’s Law isn’t just trying to make victims’ rights “equal” to the rights of the accused; they want victims’ rights to be superior.
Marsy’s Law proponents argue that their legislation deserves constitutional protection because statutory rights are often not enforced. This is debatable, but constitutional rights are no more self-enforcing than statutory rights. Moreover, enshrining vague and ambiguous language open to multiple interpretations in state constitutions isn’t the solution. The remedy is ensuring that lawmakers and state governments enforce the victims’ rights laws already in force and appropriate enough money to do so.
Legislators in any state where Marsy’s Law is being considered must pay close attention to how it has played out in other places where it’s in effect. This will take courage. The Marsy’s Law public relations campaign concentrates heavily on emotional stories of murder, rape, and sex trafficking. As the Marsy’s Law for All campaign website says, “We can all agree that no rapist should have more rights than the victim. No murderer should be afforded more rights than the victim’s family.”
No politician, whether Democrat or Republican, wants to go on the record arguing for nuance against manipulative statements like that. Not surprisingly, in a recent vote in the Pennsylvania General Assembly, only eight representatives voted against Marsy’s Law, demonstrating how hard it is to oppose any legislation claiming to protect victims of horrific crimes.
But there is hope. Legislators in states such as New Hampshire and Idaho have defeated attempts to put Marcy’s Law on the ballot for their voters. Senators in Pennsylvania should follow suit.
Legislation with this many problems has no business being enshrined in any governing document, not least the United States Constitution. The dangerous crusade in favor of Marcy’s Law must be stopped.
Matthew Harwood is a writer who lives in Bucks County, Pennsylvania, and is the managing editor at the American Civil Liberties Union. The opinions expressed here are his and his alone.