Can Victims' Rights Go Too Far? the Rapid Spread of Marsy's Law Could Undermine Due Process across the Country

By Harwood, Matthew | Reason, April 2019 | Go to article overview

Can Victims' Rights Go Too Far? the Rapid Spread of Marsy's Law Could Undermine Due Process across the Country


Harwood, Matthew, Reason


IT TAKES A certain type of person to oppose a law named after a young woman murdered in her prime that purports to protect victims' rights. This is doubly true when the primary force behind that law is a grieving brother who also happens to be a billionaire.

In 2018, voters in Florida, Nevada, Oklahoma, Kentucky, North Carolina, and Georgia passed versions of Marsy's Law, joining five states that already had such measures on the books. The Marsy's Law for All campaign says these constitutional amendments "give victims of crime equal rights that are already afforded to the accused and convicted," such as the right to be notified about and to speak at court proceedings.

A motley crew of critics sees things differently. They range from the usual suspects, such as defense attorneys and state affiliates of the American Civil Liberties Union (ACLU), to former and current prosecutors, law enforcement officers, and even Florida's League of Women Voters.

Marsy's Law is vaguely written, which is part of the problem. But opponents mostly agree the real issue is that it infringes on the constitutional rights of the accused by making it harder for them to defend themselves. Critics also argue that the more defensible parts of Marsy's Law are redundant: About two-thirds of states have already enshrined some form of victims' rights in their constitutions, and the rest have victims' rights statutes.

The Marsy's Law movement, in other words-well intentioned though it may be--is an unnecessary and emotionally manipulative assault on due process and the presumption of innocence.

SYMPATHY FOR THE ACCUSED

MARSY'S LAW IS the crusade of Henry T. Nicholas III, founder and former chief executive of Broadcom, a Fortune 500 technology company. Nicholas, who is chairman of Marsy's Law for All, founded the national organization in 2009 in response to a personal tragedy.

In 1983, Nicholas' sister, Marsalee, was murdered by her ex-boyfriend, Kerry Conley. Unbeknownst to the Nicholas family, Conley made bail. They found out in a terrible way. "After the funeral service, we were driving home and stopped at a market so my mother could just run in and get a loaf of bread," Nicholas told the Los Angeles Times in 2015. "And there in the checkout line was my sister's murderer, glowering at her."

Nicholas won his first victory for victims' rights in his home state of California in 2008, when 54 percent of voters approved the Marsy's Law ballot initiative, adding 17 enforceable victims' rights to the state constitution. He spent $4.8 million on the campaign. After that victory, Nicholas started Marsy's Law for All, according to its website, "to amend state constitutions that don't offer protections to crime victims and, eventually, the U.S. Constitution."

Since 2014, voters in 11 more states have added some version of Marsy's Law to their constitutions, although there have also been defeats. Legislators in four states--Maine, Idaho, New Hampshire, and Iowa--decided against putting the measure on the ballot last year. While the people of Montana passed it in November 2016, the state Supreme Court ruled it unconstitutional a year later because it combined multiple amendments in one initiative. In 2018, a Kentucky circuit judge also blocked certification of the ballot measure because of the way the question was worded. As in California, the Marshall Project reports, Nicholas "almost single-handedly" financed all these efforts.

Nicholas, who has himself been accused of various crimes, is not the ideal poster boy for a movement dedicated to putting victims' rights on par with the due process rights of the accused. Some of the allegations against him involve activities that arguably shouldn't be crimes at all precisely because they are victimless, such as using copious recreational drugs and hiring prostitutes for himself and his associates. In August, he was arrested in Las Vegas on suspicion of narcotic trafficking after police found heroin, cocaine, meth, and MDMA in his suite at the Encore at Wynn hotel. …

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