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A National Push For Victims’ Rights is Now Hitting Florida. But Critics Are Fighting Back.

Voters in Florida may soon get to decide whether to give victims of crime a bigger say in the criminal justice system.

Kelsey Grammer appears in an ad supporting Marsy’s Law.Youtube / Marsy’s Law For All

Voters in Florida may soon get to decide whether to give victims of crime a bigger say in the criminal justice system.

A proposed amendment to the state constitution known as Marsy’s Law for Florida would enshrine specific rights for crime victims, such as the right to privacy and the “right to be reasonably protected from the accused.” It would also give victims legal standing to testify during hearings to determine a defendant’s bail, sentencing, plea deals and parole.

“The pain a victim suffers in the aftermath of a crime is hard enough without being revictimized by the criminal justice system,” said Senator Lauren Book of Broward County, herself a victim of sexual abuse as a child and now an advocate for Marsy’s Law for Florida. “Marsy’s Law will give each victim the promise of having their voice heard.”

On February 20, Senator Book and Pasco County, Florida Sheriff Chris Nocco introduced the amendment, which would add victims’ rights language to Florida’s constitution. According to the campaign, it would create“enforceable constitutional protections, the same level that is afforded to those accused and convicted, nothing more and nothing less.” If the Florida Constitution Revision Commission approves the amendment, it will be placed on the 2018 general election ballot, where it requires 60 percent approval by voters to be added to the state constitution.

But Florida isn’t the only place considering or implementing these reforms. They’re part of a national campaign led by Henry T. Nicholas, the brother of University of California Santa Barbara student Marsalee “Marsy” Nicholas, who was murdered by an ex-boyfriend in 1983.

Thus far, the amendments have been enacted in Illinois, Montana, North Dakota, South Dakota, and Ohio. This year, efforts to pass Marsy’s Law are underway in Kentucky, Florida, Georgia, Nevada, North Carolina, Wisconsin, Idaho, Oklahoma, Maine, New Hampshire, and Iowa, according to the campaign’s national website.

Nicholas, who later earned billions as founder of the tech company Broadcom, started his crusade after his mother saw Marsy’s accused killer at a grocery store a week after her death. She didn’t know he had been bailed out of jail. Determined to protect other victims and their families, he led a successful effort in 2008 to add a victim’s bill of rights to the California constitution. The next year, he formed and funded Marsy’s Law for All to pursue similar amendments in states across the country. He hopes one day to amend the U.S. Constitution as well.

“If any good can come of something this horrible–the loss of my sister and the losses of other families of crime victims,” he said, “it is that these violent acts served as a catalyst for change.”

But in places where that change has come, critics say it’s done more harm than good. Not only has it failed to accomplish its stated goals, they say, but it’s trampled on the rights of people accused of crimes.

The Debate in Florida

Florida’s constitution already gives victims of crime the “right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.”

But Marsy’s Law for Florida would expand the definition of “victim” to include anyone who “suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom a crime or delinquent act is committed.” And it would remove language subordinating victims’ rights to the constitutional rights of people accused of crimes.

It would allow victims to refuse to be questioned under oath by defense attorneys outside of the courtroom, which, Marsy’s Law supporters argue causes victims additional trauma.

Marsy’s Law for Florida would also limit the time that defendants have to appeal their cases, requiring that “[a]ll state-level appeals and collateral attacks on any judgment must be complete within 2 years from the date of appeal in non-capital cases and 5 years in capital cases.”

Critics say these changes and others would tip the scales of justice too far in favor of victims.

In a state with the most death row exonerations in the nation, for instance, Marsy’s Law would prevent defense attorneys from interviewing victims privately about eyewitness identification, a notoriously unreliable form of testimony that has contributed to roughly 70 percent of convictions later overturned by DNA nationwide.

“Preventing defense attorneys from questioning the most unreliable testimony against a client only weakens our justice system,” wrote Howard Finkelstein, chief public defender of Broward County, in a recent opinion piece.

Opponents of the law say allowing victims to refuse defense questioning also conflicts with the right of people accused of crimes to confront the witnesses against them, and to obtain witnesses and other evidence in their favor, which are both guaranteed by the Sixth Amendment to the U.S. Constitution. When the rights of the accused conflict with the rights of the victim, Marsy’s Law provides no guidance to the court on how to proceed.

“Allowing victims to refuse to give sworn statements to defense attorneys will increase the likelihood of wrongful convictions and burden our already overburdened courts with more trials,” said Finkelstein.

Legal Ammunition

In places that have enacted Marsy’s Law, public defenders say their clients are suffering.

In South Dakota, where Marsy’s Law was passed in 2016, Minnehaha County public defender Traci Smith lamented last year that the victims’ rights created by Marsy’s Law were “usurping” the constitutional rights of her clients. In addition to causing people accused of crimes to spend unnecessary time in jail by delaying hearings, Smith said, Marsy’s Law has interfered with her duty to reach out to victims on her clients’ behalf.

Indeed, one of Smith’s paralegals received a cease and desist letter from the state attorney general’s office after she left two voicemails for the victim in a bad check case. Critics say providing prosecutors with legal ammunition to hinder defense investigations could be catastrophic in an environment where paralegals with public defender offices have already found themselves harassed and even prosecuted by DAs.

Beyond threatening the constitutional rights of the accused, opponents say, Marsy’s Law fails to achieve its own stated goals. While it claims to protect victims from the “trauma” of legal questioning, for example, victims will still be cross-examined in court by defense attorneys. The law also doesn’t address the potential trauma inflicted on victims by police and prosecutors, who can question victims as they see fit.

And while one of the law’s objectives is to ensure a speedy trial for the victim, the law’s requirements of victim input on plea deals, bond decisions, and sentencing will only slow down criminal proceedings.

“I think Marsy’s Law is judgmental overkill,” retired Santa Clara County, California public defender Roderick O’Connor told The Appealnoting that even its language seems to vilify the accused. When Marsy’s Law was approved by California voters in 2008, O’Connor says, it was “pitched as a way to elevate crime victims over offenders, but as applied it was clearly intended to truncate the rights of inmates to achieve parole and those accused of crimes to investigate their cases and pursue defenses.”

In juvenile cases, allowing victims to be present and heard in all proceedings could result in a “severe erosion of the confidentiality needed for the juvenile system to function,” wrote Anna Elbroch, a New Hampshire attorney who represents young people accused of crimes, in a recent op-ed. Giving victims the right to participate in every stage of the criminal process could also “serve to pressure prosecutors to pursue a more punitive approach, rather than the treatment and rehabilitation approach on which the juvenile justice system is based,” she said.

In North Dakota, where voters approved the amendment in 2016, the law’s ambiguous language has caused it to be unevenly applied from county to county. And uncertainty over its requirements has made it easier for public officials to hide information from the public; one Bismarck police officer involved in a shooting invoked Marsy’s Law because he’d first been beaten by the victim.

Other critics have called Marsy’s Law a costly unfunded mandate that has strained county budgets. Pennington County, South Dakota State’s Attorney Mark Vargo said Marsy’s Law forced him to hire four new employees to notify victims of their new rights and the status of their cases, costing his county of about 100,000 residents $161,000.

Testifying against Marsy’s Law in 2017, Ohio Public Defender Tim Young told legislators that the law “does not provide additional resources and the government remains immune to liability.”

The campaign did not respond to calls and emails from The Appeal. But supporters of Marsy’s Law argue that such complaints are exaggerated and that supporting crime victims justifies any increased workload.

“This is about balancing the rights between defendant and victim — and having a system that offers equality as a right, not a courtesy,” said Amanda Grady Sexton, state director of Marsy’s Law for New Hampshire. “No system is 100 percent perfect, but the rules of enforceability for a violation of a constitutional right [are] clear.”

“Going Up Against a Billionaire”

Despite their drawbacks, victims’ rights measures are popular with voters. Polls conducted in 2016 in MontanaNorth Dakota, and South Dakota before the amendments passed found at least 70 percent of respondents favored them. The Montana ballot measure passed in 2016 with 66 percent of the vote. The North Dakota and South Dakota ballot measures were approved the same year by 62 percent and 60 percent of voters, respectively. In Ohio, where state Attorney General Mike DeWine co-chaired the campaign, Marsy’s Law was approved by a 4–1 margin in 2017.

Florida could soon follow suit. An October 2017 survey found that 85 percent of 700 likely Florida voters agreed with the idea of Marsy’s Law protections.

“It really doesn’t surprise me that it’s polling well,” Caitlin Borgmann, executive director of the American Civil Liberties Union of Montana, which opposed Marsy’s Law, told Governing magazine. “It’s difficult to take a position against it because it sounds like you’re opposing victims.”

Indeed, the Marsy’s Law campaign has often exploited the sympathy that many people feel for victims. Responding to a blog post critical of Marsy’s Law for North Dakota, the campaign’s chairwoman, Kathleen Wrigley, wrote: “I ask these opponents to look into the eyes of the Perleberg family, whose son and brother [were] murdered at a wedding reception, or tell Mrs. Melby, whose daughter was raped and sexually assaulted in Minot, that the hurdles they’ve had in the system are no big deal. Or, try to convince the four-year-old child pornography victim’s parents that their child isn’t part of the system.”

In each state, the Marsy’s Law campaign has enlisted top political consultants and lobbyists, secured big political endorsements, and run a slick public relations campaign. Nicholas has spent more than $20 million on these efforts, including an advertisement featuring Frasier star Kelsey Grammer.

During the 2016 campaign, Ryan Kolbeck, president of the South Dakota Association of Criminal Defense Lawyers said he was outmatched by the emotionally appealing and well-funded victims’ rights campaign. “We did our best to educate the public, but we had a Facebook page and $5,000,” Kolbeck said. “We are going up against a billionaire.”

The Road Ahead

One of the reasons the Marsy’s Law campaign has focused on constitutional amendments is that, once enacted, a constitutional amendment is harder to change than a statute, which lawmakers regularly amend or repeal as needed.

Yet despite the expense and effort, lawmakers and courts have already begun to modify Marsy’s Laws.

In 2014, a federal judge ruled that a portion of California’s Marsy’s Law was unconstitutional, overturning a provision that lengthened the minimum time between parole hearings from one year to three years, though the ruling was later reversed. In Montana, the State Supreme Court recently ruled it unconstitutional and “void in its entirety.”

In South Dakota, lawmakers are now working to amend the amendment, citing unintended consequences like high costs to counties.

Even some victims there are now fighting against Marsy’s Law. Lynne Forbush told lawmakers that after her husband was killed by a 16-year-old in a car crash, the driver’s mother invoked Marsy’s Law, which restricted the release of vehicle crash reports. Forbush had to retain an attorney to obtain an accident report in order to begin her insurance claim. The state was of little help to Forbush; she said she was told that Marsy’s Law was so poorly conceived that even state employees could not navigate it.

“It seemed like a hot potato that no one wanted to touch,” she said. “Marsy’s Law added to our emotional pain, added to the financial burden, and prolonged the agony unnecessarily.