By Bryce Wachtell (PO ’21)
As November 6th nears and contentious political races come to a close, millions of Americans will decide upon a range of candidates and ballot measures to determine the country’s political future. One such proposed statute appearing on the ballots of several states (including Oklahoma, Nevada, Kentucky, and Georgia) is Marsy’s Law, a proposed constitutional amendment which broadens crime victim’s rights. Marsy’s Law has been heavily supported by California billionaire Henry Nicholas, but has been met by unexpected opposition from groups like the ACLU. With a decade-long track record of varied success, the future of Marsy’s Law—and with it, Nicholas’s political legacy—hangs in the balance of the coming election.
In November of 1983, Kerry Michael Conley stalked and killer his former girlfriend Marsalee (“Marsy”) Nicholas, who was a senior at the University of California Santa Barbara. Conley was found guilty of second degree murder, and he was sentenced to 17 years to life. Prior to trial, the defendant—while out on bail—ran into Marsy’s unsuspecting mother in the local grocery store. The victim’s family had not been informed of his temporary release and was angered that the state had kept them oblivious.
Marsy’s Law was a response to this interaction. The law, which has been bankrolled by Marsy’s billionaire brother Henry Nicholas III, concretizes a set of rights for victims and their families. These include the right to be treated with dignity and respect with regards to safety, dignity, and privacy; the right to reasonable protection from the accused; and the right to be informed of the release or escape of the accused (such as bail.)
The upcoming election is just another battle in the Nicholas family’s fight for broadened victim’s rights. Marsy’s Law has been proposed in several states, with inconsistent success. In the November 2008 election, Proposition 8 in California passed, establishing seventeen enumerated rights of victims—an iteration of Marsy’s law. However, the House of Representatives for New Hampshire, the Idaho legislature, and several others have shot down similar propositions.
This is because the law has been met with steady resistance. Opponents cite several reasons for their disapproval, but the most compelling contention posits that the one-size-fits-all law might infringe upon the presumption of innocent (formally established by Coffin v. United States in 1895.) As many scholars have pointed out, it also wrongfully pits the rights of defendants against the rights of victims.
For instance, in South Dakota, a highway patrol trooper who shot a man twice invoked Marsy’s law to ensure his/her name and personal details remain anonymous. The trooper claimed he/she was attacked by the man prior to shooting him and that the supposed attack then grants victim status to the trooper as well (even though those claims have not been legitimized.) In other words, Marsy’s Law confers rights to a crime victim and their family without regard to whether formal charges are pressed against the accused.
As Jeanne Hruska, Policy Director of the ACLU of New Hampshire, wrote, “Victims’ rights are not rights against the state. Instead, they are rights against another individual… In fact, many of the provisions in Marsy’s Law could actually strengthen the state’s hand against a defendant, undermining a bedrock principle of our legal system—the presumption of innocence.
Yet support of Marsy’s Law remains steadfast, especially because of Nicholas’s dollars. (To date, he has spent at least $30 million for the cause.) The official Marsy’s Law advocacy website reads, “Victims of violent crime in [states which have passed Marsy’s Law] must by law be treated with respect and dignity by the criminal justice system. Courts must consider the safety of victims and families when setting bail and release conditions. Family members have legal standing in bail hearings, pleas, sentencing, and parole hearings.”
But critics of the law have often criticized this vague, ambiguous language used to describe the law, arguing that it misleads and misconstrues the true implications of expanded crime victim rights. In Kentucky last week, a judge even ordered the results of an upcoming Marsy’s Law ballot proposition preemptively invalid because of misleading, pointed language.
A decade ago, Marsy’s Law passed in California with 54% of the vote. In Illinois, support reached 73%. For Montana, voters favored the amendment two to one, but the State Supreme Court ruled against the measure, citing vague, misleading language. Meanwhile, in New Hampshire, Idaho, and other states, politicians and constituents have successfully halted its enactment. In fact, South Dakota has begun the lengthy process of trying to repeal their Marsy’s Law amendment, which passed with 60% of support just two years ago.
With a lack of polling, it is hard to know how upcoming states will vote, but one thing is certain: what transpires during the coming midterms will have a sweeping impact on the number of citizens who do or do not live in a state in which Marsy’s Law is concretized. That, in turn, has serious implications for the rights of criminals, crime victims, and crime victims’ families.