Marsy’s Law: Sounds good, but is it?

Looking at states that have had trouble following Marsy’s Law passage, various attorneys and local civil rights groups are concerned about what the ballot measure, if passed, means for Nevada. 

Those opposed to the measure are worried about it slowing down the system, costing the state money, violating due process of defendants and even shielding police officers from scrutiny after shootings.

Question 1 on the November ballot amends the state constitution to add 17 specific rights to crime victims, including notification of all public proceedings, strengthened claims to quicker restitution, protection them from intimidation, power to refuse interviews or depositions unless they are court-ordered, and early notification of all their rights — to name a few.

Similar measures have passed easily in a handful of states – perhaps not surprisingly.

“If I tell you I want to do something for victims of crime, how can you say no to that?” says John Piro, a deputy public defender with the Clark County Public Defender’s office. “This issue is painted as yes or no. Either you agree with supporting victims or you don’t.”

But the law has been overturned by a Supreme Court in one state, and been found so flawed that it must return to voters in another.

And in Florida, a judge earlier this week ordered a similar measure be thrown off the ballot because it failed to meet the state’s “truth in packaging” initiative requirements.

“If you get arrested and are asked to name your rights, you know you have the right to remain silent,” says Will Batista, the state director for Marsy’s Law of Nevada, the group pushing the amendment. “If you ask a victim to do the same thing, they often can’t think of their rights. Often times, states don’t have enforceable rights. (Marsy’s Law) elevates rights to a constitutional level.”

Piro and other critics contend amending the constitution is a wrong step.

“The constitution should be hard to change because of unintentional consequences,” Piro says. “You can’t fix this in two years. You can’t fix this in four years.”

“It’s a solution in search of a problem,” says Holly Welborn, the policy director of the ACLU of Nevada.

Bipartisan — even unanimous — legislative support

The first time Nevada voted on adding victims rights to the constitution was in 1996.

The Nevada Crime Victim Rights added provisions to inform people of the status of criminal proceedings related to the crime, allow them to be present at public hearings during critical parts of proceedings, and open the opportunity to be heard at the sentencing or release hearings for a convicted person. The measure passed by nearly 75 percent.

But recent years have seen growing support for additional protections.

“More needs to be done out of respect for those who suffer daily due to the effects of crime to ensure their voices are heard and their needs are recognized,” said state Sen. Michael Roberson, during a legislative hearing in 2017.

Enter Marsy’s Law.

In 1983, Marsalee “Marsy” Nicholas was stalked and killed by her boyfriend. A week after the murder, the family, unaware the her killer was out on bail, encountered him at a grocery store.

The situation prompted California billionaire Henry Nicholas, Marsy’s brother, to launch campaigns in numerous states, spending million of dollars to enact Marsy’s Law.

“We have a billionaire buying Constitutional amendments across the states,” Piro says.

Nicholas has a criminal history of his own —  he was arrested in early August in Las Vegas on suspicion of drug trafficking.

Supporters of the law call his past irrelevant.

“I don’t know what the criminal history has to do with protecting victims in the state of Nevada,” William Horne, a former legislator who was a lobbyist for Marsy’s Law for All, said during a 2017 legislative hearing.

California became the first state to pass the law in 2008. Illinois, Ohio, North Dakota, South Dakota and Montana followed suited. Nevada is one of four states where the law will be on the ballot this November. The others are Kentucky, Oklahoma and Georgia.

The movement’s backers still hope Florida voters will have a chance to approve the measure this year, despite a judge earlier this week ordering it off the ballot. The issue is expected to land in the state’s Supreme Court.

During the last two Nevada legislative sessions, the proposed constitutional amendment garnered bipartisan support. In 2015, it was opposed by six legislators. It passed unanimously in 2017. Lawmaker-initiated constitutional amendments must pass the Nevada Legislature twice and then be presented to voters.

Months after the Nevada Legislature acted that second time, putting Marsy’s Law on the 2018 ballot, the Montana Supreme Court ruled implementation of the constitutional amendment itself violated Montana’s state constitution.

“Although well intentioned, the process leading to CI-116’s passage deprived Montana voters of the ability to consider the many, separate ways it changed Montana’s constitution or explain the significant administrative, financial, and compliance burdens its unfunded mandates imposed upon state, county and local governments while jeopardizing the existing rights of everyone involved with the criminal judicial system,” said Montana attorney Leo Gallagher.

It isn’t the only time Marsy’s Law has been second-guessed. South Dakota, where voters approved Marsy’s Law in 2016, had to send the measure back to voters in June to make changes to the law to deal with unforeseen consequences.

“This was just specific language they had to tweak to make sure it included a way for victims to opt-in,” Batista says.

Practical problems

Skeptics worry about the strain and confusion Marsy’s Law would put on the criminal justice system.

Piro, the public defender, says it is unclear what would happen if a victim wants a case to proceed more quickly and the defendant’s lawyer isn’t ready — Marsy’s Law assures victims have a “timely disposition of the case following the arrest.”

“Who wins in that situation?” he asks. “This inserts a passionate actor into a system that was designed to be dispassionate.”

Welborn with the ACLU worries that defendants will be deprived due process.

“We don’t even know if a person is a criminal or if they’ve done this act,” Piro says. “It gives rights to the victim before a person is convicted.”

Aaron Birst, the executive director with the North Dakota State’s Attorneys Association, which opposed Marsy’s Law when the state approved it in 2016, says his state is still struggling to identify the parameters of the law. “There is clearly still an uncertainty to what extent Marsy’s Law is impacting our court system,” he says.

Birst adds the law did slow down the justice system, though not to the degree he feared.

And the law costs money.

In North Dakota, Birst says the state spent more than $800,000 to update software to update the statewide victim notification system. He says that the state hadn’t added additional money to increase victims services like counseling or one-on-one support. “They figured making upgrades to the system was enough to comply and didn’t pony up money to hire more bodies,” Birst says. He adds that he anticipates the state will add money to that at some point.

Instead of investing in updates to the system in order to comply, Welborn says money would be better spent in other areas. “This is why victims rights groups in other states were opposed to it,” she says. “It takes away resources from what crime victims actually need.”

Piro says in Nevada there has been hardly any consideration of costs. “You’re going to have to hire additional staff so you can notify people,” he says.

That’s what happened in South Dakota, where three of the state’s largest counties had to hire employees to comply with the law.

Batista doubts these fiscal concerns will manifest in Nevada because of the system already in place — Victim Information and Notification Everyday. “We already had the infrastructure built in here,” he says referring to VINE, which allows crime victims to obtain information about criminal cases and the custody status of offenders.

He adds that most the additional costs states have seen is from printing out victims rights cards to inform them of their rights.

One consequence that Birst didn’t anticipate was law enforcement involved in officer involved shootings invoking Marsy’s Law. Even though the North Dakota Attorney General weighed in to say names aren’t protected, Birst adds that prosecutors are playing it cautious.

In Nevada, there are other questions that are being ignored, according to Christy Craig, a Clark County public defender.

“If Marsy’s Law goes into effect, what is the (District Attorney’s office) going to do when a victim in domestic violence court says they don’t want to prosecute?” she says. “Are they still going to get a material witness warrant and arrest those victims? Under Marsy’s Law, I don’t think they can.”

When asked about material witness warrants during a 2017 legislative hearing on Marsy’s Law, Clark County District Attorney Steve Wolfson he didn’t “see it as a problem whatsoever.” The Current was unable to reach Wolfson for comment. 

Even though the district attorney’s office has victims advocates and already does follow ups to ensure they are alerted to important criminal proceedings, Wolfson said his office “could do a better job at providing status updates on cases.” Without giving any specifics, he said having a constitutional amendment would help them do a better job.

“We do a pretty good job now at providing a number of these things on our own,” he told legislators in 2017. “We allow victims to provide victim impact statements. We give them, to the best of our ability, notice of proceedings and an opportunity to be heard. Victims provide input to prosecutors for purposes of whether we should plea bargain a case, but they do not control what a prosecutor does.”

Piro said he doesn’t think it should take a constitutional amendment for the district attorney’s office to do a better job.