As a nation, we tend to react universally to particular catchphrases and soundbites. One term that gets our collective hackles up is the word “victim.” Everyone wants to support and appear sympathetic to the victim; no one wants to seem judgmental of a victim.
We have gotten so adept at our collective tiptoeing that we have created sub-catchphrases to address our treatment of victims: “victim-shaming,” “victim-blaming.” But what happens when our “ideal” victim isn’t? And how far is too far when victims’ rights are balanced against those of defendants?
Marsy’s Law was named after 21-year-old murder victim, Marsalee Nicholas. Marsalee (Marsy) was shot and killed by an ex-boyfriend in California in 1983.
Shortly after that, Marsy’s mother bumped into the ex-boyfriend while he was out of custody on bail, pending trial. Marsy’s brother, Henry Nicholas, started the nationwide campaign “Marsy’s Law for All,” seeking to place victims’ rights on an “equal footing” with defendants’ constitutional rights.
In situations like Marsy’s, had Marsy’s Law been in effect during the trial of her accused murderer, Marsy’s family would have been notified when the defendant was released on bail.
Marsy’s Law for All sought to have the following “rights” written into state constitutions on behalf of victims:
California became the first state to adopt Marsy’s Law in 2008 (via Proposition 9). While several other states followed suit, much of the proposed legislation based on the original Marsy’s Law has been amended or struck down entirely after legal challenges revealed serious issues with the blanket legislation.
Interestingly, one of the main issues with Marsy’s Law-type ballot measures, and why there are only a handful of states (12 as of 2021) with similar laws, is that the language of all Marsy’s Law legislation is deliberately vague and there are no provisions for funding.
Voters cleave to the trigger phrases like “victims’ rights” and “equal protection” without considering the practical implementation of the legislation they are asked to vote upon. Ballot agendas like Marsy’s Law don’t address the functionality of the rules they seek to implement.
Where does the funding come from to cover the manpower and hard costs of providing procedural notice to all victims? It is tantamount to asking voters if they want more police officers in their neighbourhoods to fight crime but failing to write funding measures into the ballot to implement the change.
In 2017, the Montana Supreme Court struck down a Marsy’s Law initiative as unconstitutional after Montana voters passed state bill CI-116. The opposition launched by civil rights groups outlined Marsy’s Law’s dangers to fundamental due process rights.
Opposition briefs raised the argument that the new section added to the state constitution by the initiative (Article II, Section 36), while one contiguous text, effectively sought to amend multiple pre-existing sections of the constitution by making exceptions or changes to provisions concerning the following:
These are fundamentally inalienable Constitutional protections, none of which can be or should be ameliorated by administrative fiat.
Similarly, CI-116 also sought to redefine the term “victim” to include family, friends, corporations and other non-human entities.
Because CI-116 defined family members as “victims,” those designees would have been afforded the right to be fully informed and involved in the case, thereby circumventing the traditional victim’s right to privacy.
For example, if a rape victim is deciding whether to obtain an abortion or a domestic violence victim is deciding whether to return to an alleged abuser, the immediate victim’s family members will be informed of and have influence over those decisions.
By attempting to make the Montana Constitution more supportive of victims, the new definition of family member “victims” left immediate victims less protected because it assumed that all victims are amenable to making their family members part of the prosecution and recovery process. The “ideal” victim.
Another fundamental flaw with CI-116, and other legislation of its ilk, is the requirement of notice to crime victims.
CI-116, along with a similar bill presented to voters in Kentucky, included “non-human entities” in its definition of the term “victims,” giving corporations and family members access to intimate case details, removing the right-to-know balancing requirement that creates informational transparency in court proceedings.
This blocks the ability of defendants to understand the charges brought against them and obstructs the press and the public’s ability to be informed. Similarly, state legislation like CI-116 eschews the presumption of innocence altogether.
The constitution guarantees an accused person the presumption of innocence, holds the government to prove beyond a reasonable doubt and otherwise promises a fair trial.
If an alleged victim is presumed the victim of a crime before a jury returns a verdict, then the accused cannot be presumed innocent.
Marsy’s Law has not been written into a Constitutional amendment and for a good reason. All Marsy’s Law-type legislation is passed and enacted at the state level.
When state and federal laws tend to contradict each other, the Constitutional premise that applies is called the supremacy clause, which is part of article VI of the constitution.
The supremacy clause contains the doctrine of preemption, which directs that the federal government trumps state governments in the case of conflicting legislation (think state-level medical marijuana provisions).
Marsy’s Law-esque legislation is problematic enough that most appellate courts have struck down portions of proposed legislation in many states.
Part of the issue is the fundamental underpinning of the Law: providing victims with rights equal to defendants. The purported goal is laudable, but the language is vague, possibly intentionally so.
The Constitution of the United States already protects citizens from government abuse. For example, the Fourth Amendment protects citizens from random and warrantless police searches as a tenet of due process protection.
However, victims’ rights do not act as a check on government power. By placing victims’ rights on an equal footing with the Constitutionally-protected rights of defendants, some of those rights will be contradictory, potentially undermining the criminal justice process entirely.
For instance, if a victim under the overly broad definition of the term in Marsy’s Law does not receive timely notice of a defendant’s bail hearing, should the defendant, whose innocence is still presumed under Federal Law, remain incarcerated without a hearing while local law enforcement searches for all related victims for notification purposes? Or, should an inmate’s parole hearing (to determine release date) be postponed to accommodate a victim’s schedule?
In both instances, the criminal defendant’s due process rights conflict with the victim’s rights to notification and be heard.
Prolonging a defendant’s time in custody for spurious reasons (no matter how much people want to at least feign empathy for victims) would be an egregious violation of established federal and state Law.
Although no bright line rule defines a minimum amount of detention that qualifies as unnecessarily prolonged, established jurisprudence has found viable claims for prolonged detention for periods of incarceration as short as four days. As seen in Gonzalez v. New York City, 2016 U.S. Dist. LEXIS 177820, 13-14 (S.D.N.Y. 2016).
In Florida, the stakes are even higher, as the broadening of the term “victim” has caused the entire caboose to fall off the rails.
In 2020, attorneys waged a pitched legal battle over whether or not a 2018 constitutional amendment known as “Marsy’s Law” can shield the identities of police officers involved in a criminal investigation.
After a lower court ruled that the term “victim” in the state legislation does not apply to law enforcement officers, the city of Tallahassee filed a notice asking the Florida State Supreme Court to decide whether the constitutional amendment, based on Marsy’s Law, can apply to police officers who were threatened in use-of-force incidents.
The lawsuit was initially filed by the Florida Police Benevolent Association, representing two officers who were involved in an altercation with a suspect, and argued that, as victims, the officers were entitled to privacy protections included in Marsy’s Law.
The lawsuit itself was the first major test of whether Marsy’s Law conflicts with a decades-old government-in-the-sunshine amendment enshrined in the Florida Constitution and is still considered to be some of the nation’s broadest public records laws.
The two police officers in the case were involved in separate use-of-force incidents prior to the incident at issue. On one occasion that drew national attention, one of the officers shot a Black transgender man during what was described as “a scuffle” at the time of the arrest.
Because that officer was the alleged assault victim due to the “scuffle,” the Police Benevolent Association argued that the officer had the right to invoke the privacy privilege provided by Marsy’s Law.
Several constitutional rights organizations and media outlets intervened in the lawsuit, arguing that allowing Marsy’s Law to apply to law-enforcement officers would undercut the state’s open-records laws, including laws that govern the Pitchess process.
The Pitches process is a legal motion filed tangentially to a criminal action requesting personnel records of a specific law enforcement officer alleged to have used excessive force.
This particular use of the privacy provisions under Marsy’s Law does far more to protect the confidentiality of potentially rogue law enforcement than it does to protect the rights of victims of crime.
Countless district, appellate, and state supreme courts have addressed the ongoing conflicts between victims’ rights under Marsy’s Law and defendants’ rights to due process under the constitution over the years.
Questions like “does a victim’s right to refuse to participate in an interview or discovery request violate a defendant’s Sixth Amendment right to confront his or her accuser?” are not easily answered.
The bottom line is this: as much as our collective sense of morality urges us to empathize with victims of crime, the vagueness of Marsy’s Law-type legislation makes the balancing test a more nuanced and complicated examination than just who deserves to be supported through a criminal proceeding.
As much as we would like to believe that the answer is simple, it is not. When pitting zealous hand-holding against federal due process rights, fundamental constitutionality must prevail.
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