Marsy’s Law makes hash of constitution


David Crisp

When a ballot initiative’s chief talking point is wrong in two different ways, it’s time to give it a closer look.

Such were my thoughts when I started hearing radio ads for Constitutional Initiative 116, the so-called Marsy’s Law amendment to the Montana Constitution. The ads say it’s time to guarantee “equal rights for victims.”

Wrong. And wrong. People who create crime victims fall into two categories: those who have been convicted of a crime and those who have not.

I won’t belabor the case that people convicted of crimes have fewer rights than victims. Suffice it to say that I have spent hours in state prisons over the course of my reporting career. I have absolutely no desire to relive a single one of those hours.

Suspects who have not been convicted of crimes do have certain rights unavailable to victims. In any given case, jurors may be pretty sure that an accused criminal is guilty. And they may believe that releasing the criminal back into society would cause fear and suffering in the victim. But that’s not good enough.

If jurors aren’t sure beyond a reasonable doubt, the accused must go free. The law has no reasonable doubt protection for victims, and that’s for a good reason. When the state decides to bring down the brutal force of its coercive might on a citizen, it had darn well better be sure it is right. Victims’ rights come second.

So I began looking more closely into Marsy’s Law, a nationwide effort to expand constitutional rights for victims founded by California billionaire Henry Nicholas III. According to Ballotpedia, Nicholas has contributed 94 percent of the $2.4 million raised so far to pass the initiative in Montana.

Victims’ rights are not addressed in the U.S. Constitution, nor in the Montana Constitution. But Marsy’s Law supporters say that some form of constitutional protection for victims exists in 32 states. The first Marsy’s Law was added to the California Constitution in 2008.

According to a count by Wikipedia, the Los Angeles Times and 27 other newspapers opposed California’s Proposition 9, and only one, the Eureka Reporter, endorsed it. In an editorial, the Times said the proposition unwisely moved victim protections from state statutes to the constitution, making deficiencies in the legislation much tougher to correct.

The proposed Montana amendment suggests some of the potential problems. At nearly 900 words, it would add a substantial chunk to Montana’s 13,200-word constitution. It would enshrine in the constitution many provisions already present in existing law.

For example, Montana law already requires that victims and witnesses of crimes “receive fair and proper treatment from law enforcement agencies and prosecutors,” including the right to attend court proceedings, seek restitution, obtain court documents at no cost, be informed of the offender’s whereabouts and have a victim advocate present when interviewed about the case.

Marsy’s Law would require rights for victims “no less vigorous than the protections afforded to a criminal defendant.” It enshrines in the constitution “fairness and respect for the victim’s dignity,” a vague and sweeping provision that sounds designed to provoke legal challenges.

Marsy’s Law also would expand the definition of a victim to include any “person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime,” including family members and other representatives of the victim.

In South Dakota, which also is voting on Marsy’s Law in November, the state bar association has argued that the law will increase costs of notifying victims and open the state up to lawsuits pitting victims against defendants. Others argue that the law could make prison sentences longer, delay parole hearings and prevent the release of low-risk offenders to reduce overcrowding.

In North Dakota, also voting on the law in November, retired Municipal Judge Tom Davies writes, “Constitutional amendments are very difficult to obtain for good reason: They should be pursued as an absolute last resort, and they should actually accomplish the desired goals. This one fails on both counts.”

A committee opposing the amendment in North Dakota estimates that Marsy’s Law would cost the state $2 million a year, with most of the burden falling on counties. In Montana, Gallatin County Attorney Marty Lambert has expressed similar concerns about the burden on his staff.

The Marsy’s Law website says, unhelpfully, “Cost should not prevent us from doing what is right. … The way to eliminate this cost is to ensure that the victims’ rights are not violated.”

Cost is far from the biggest problem. District Judge Russell Fagg, in an opinion piece for Montana newspapers, said at least one provision of Marsy’s Law may be unconstitutional. That’s the provision that guarantees victims “the right to refuse an interview, deposition, or other discovery request.”

“This flies in the face of our constitutional right of confrontation,” Fagg wrote. “When a defendant is on trial and his liberty is at stake, the defendant should certainly have the right to interview the alleged victim and find out exactly what the victim’s testimony will be at trial.”

My disdain for the initiative process goes way back. Good legislation has to be hammered out through negotiation and compromise, not through up-or-down votes cast by people who have never even seen the initiative. Montana’s medical marijuana fiasco makes my case.

Marsy’s Law pushes defects in the initiative process to an even lower level. No doubt the law would accomplish some worthwhile things, but those things can be best achieved not by constitutional fiat but by legislators who have the time and background to make sure they get it right.

It’s telling that the measure is supported by U.S. Sen. Steve Daines, R-Mont., a member of a legislative body that can’t get anything right. Montana voters just need to exercise better judgment than the U.S. Senate does and vote down Marsy’s Law. Maybe senators would learn something.

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