How Marsy’s Law performed in the 2018 midterm elections

The crime victim bill of rights netted some big wins on Election Day.

During Tuesday’s midterm elections, voters in Florida, Georgia, and Oklahoma approved a controversial ballot measure known as Marsy’s Law — writing what’s effectively a crime victim bill of rights into their state laws. And results from Kentucky, Nevada, and North Carolina are still pending, meaning the measure could net even more victories by Election Day’s end.

Marsy’s Law aims to ensure that victims — often defined to include not just the direct crime victim but also their family members — are heard and protected throughout the criminal trial process. Named after the murdered sister of Marsy’s Law for All founder Henry Nicholas, the law gives the victims, as defined under the initiative, the right to, for example, be told about criminal proceedings, be present at proceedings, be heard at proceedings, and be protected from the accused.

The Marsy’s Law campaign explained why such protections are, in its view, necessary:

Only a week after Marsy was murdered, Dr. [Henry] Nicholas and Marsy’s mother, Mrs. Marcella Leach, walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer. She had no idea that he had been released on bail.

Mrs. Leach’s story is typical of the pain and suffering the family members of murder victims have endured. She was not informed because the courts and law enforcement, though well-meaning, had no obligation to keep her informed. While criminals have more than 20 individuals rights spelled out in the U.S. Constitution, the surviving family members of murder victims have none.

The movement for Marsy’s Law has taken off since 2008. California, Illinois, Montana, North Dakota, Ohio, and South Dakota each approved a version of it, although it was struck down in Montana by the state’s Supreme Court.

But the laws have become very controversial among some criminal justice reformers. The American Civil Liberties Union summarized its general opposition to Marsy’s Law in a blog post by ACLU of New Hampshire policy director Jeanne Hruska earlier this year, arguing that the law undermines due process protections and may end up unworkable.

One concern is that the law creates a false dichotomy between victims’ and defendants’ rights, as if the victims and defendants are the two sides facing off in a trial. But a trial is really the government versus the defendant. This distinction is crucial for understanding why the criminal justice system works as it does.

“Defendants’ rights only apply when the state is attempting to deprive the accused — not the victim — of life, liberty, or property,” Hruska wrote. “They serve as essential checks against government abuse, preventing the government from arresting and imprisoning anyone, for any reason, at any time.”

Yet in creating this dichotomy, Marsy’s Law may, Hruska went on, empower the state, through the victim, against criminal defendants — potentially giving the criminal justice system even more power to prosecute and incarcerate people, including those who may not even be guilty of the crimes that they’re accused of.

“Creating such a conflict [between victims’ rights and defendants’ rights] means that defendants’ rights may lose in certain circumstances,” Hruska claimed. “This result accepts that defendants’ rights against the state will be weakened or unenforced in some cases, potentially at a significant cost to constitutional due process.”

There are ways, she wrote, to protect crime victims’ rights without such downsides. In New Hampshire, as one example, victims’ rights are protected “to the extent … they are not inconsistent with the constitutional or statutory rights of the accused.” Marsy’s Law doesn’t typically include such limitations.

Another question is how, exactly, Marsy’s Law will be implemented. “For instance, Marsy’s Law includes a constitutional right to privacy for victims, yet it is impossible to know what that right would encompass in practice,” Hruska argued. “Would it prevent the release of names or crime reports? Would it reduce the amount of information that press outlets are allowed to provide to the public regarding crimes? Could it give a victim and their attorney control over the limits of a victim’s testimony at trial?”

Beth Schwartzapfel at the Marshall Project reported on major implementation problems in South Dakota:

Sheriffs stopped asking for the public’s help in solving crimes-in-progress to avoid inadvertently revealing a victim’s location. Prosecutors spent hundreds of thousands of dollars beefing up staff to find victims of low-level misdemeanors, such as vandalism or shoplifting­. Defendants have spent additional days in jail because the prosecutor can’t locate victims in time for an arraignment, according to prosecutors and defense attorneys.

It’s not that the ACLU and other criminal justice reformers oppose legally protecting victims’ rights. Many states, in fact, have crime victim protections that reformers don’t object to. It’s that, in their view, Marsy’s Law is not the right way to protect these victims.

On Tuesday, voters got to make the final decision on this issue. And based on the results so far, they have sided with Marsy’s Law.