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Anti-Online Trafficking Bills Advance in Congress, Despite Opposition from Survivors Themselves

On Tuesday, Ivanka Trump hosted supporters of the legislation in the White House’s Roosevelt Room.

Anti-Online Trafficking Bills Advance in Congress, Despite Opposition from Survivors Themselves


This week, the Senate is expected to vote on a bill that could shutter websites that host sex-for-sale ads. The bill, known as SESTA — the Stop Enabling Sex Traffickers Act — has been described by its supporters as a way to provide justice to victims of human trafficking by making it easier for them to file civil suits against the sites. However, a growing coalition of survivors of trafficking, sex workers, and women’s and LGBT rights groups oppose SESTA, saying it will endanger those it is meant to help.

SESTA’s companion bill passed the House of Representatives last week, racking up 388 votes in favor, with 25 opposing votes from both Democrats and Republicans. The House bill, the Fight Online Sex Trafficking Act (or FOSTA), would give state attorneys general the power to bring criminal prosecutions against people who operate websites “with the intent to promote or facilitate the prostitution of another person.” As FOSTA’s original sponsor Rep. Ann Wagner (R-MO) described the bill during a floor speech, it would “put those bad actor websites behind bars.”

SESTA, the Senate bill, is currently supported by a seemingly disparate coalition: anti-sex work groups, some anti-trafficking services, religious right groups, and some women’s rights groups. Though they originally opposed it on the grounds that it would compromise free speech online, most major tech companies now back SESTA. The bill has also won a personal endorsement from Facebook Chief Operating Officer Sheryl Sandberg.

Should FOSTA and SESTA become law, anyone engaged in the sex trade — whether through choice, circumstance, or coercion — risks losing access to websites like Backpage and others that connect them to work. Advocates say this would be a direct attack on sex workers’ ability to continue doing sex work on their own terms, and risk making people in the sex trades more vulnerable to trafficking.

Empowering Prosecutors, Eradicating the Sex Trade

FOSTA and SESTA are significant not only for what conduct they seek to outlaw, but for whose power they extend. Though FOSTA expands the Mann Act, criminalizing the act of “facilitating” prostitution online, using and operating a website to “facilitate” prostitution is already a federal crime under the Travel Act (with which the popular men’s escort site rentboy.com was prosecuted). But FOSTA goes much further — it hands the power to prosecute website operators to state attorneys general. State AGs have long demanded action against online ads for sexual services. In 2008, then-Connecticut Attorney General Richard Blumenthal led an effort by 40 state AGs against Craigslist over its Adult Services section. Blumenthal, a Democratic senator, introduced SESTA along with Sen. Rob Portman (R-OH) in 2017.

Supporters of the legislation say that by permitting legal action by or on behalf of those who were advertised on such websites, it will make websites themselves liable for trafficking. One lobbying group urged people to spread the message, “People are not products. Stop selling them online.” Another was more blunt: “Stop internet companies from enabling child rape.”

Driving such messages are groups who have long lobbied the U.S. government to further criminalize the sex trade, including those behind the new organization World Without Exploitation (WWE), helmed by former Brooklyn prosecutor Lauren Hersh. That group was founded in part by the Coalition Against Trafficking in Women (CATW), which has organized women’s rights activists as far back as the Clinton administration not just against trafficking, but to press governments to define all commercial sex as trafficking. CATW sees sex workers’ rights advocates — and their prominent allies, like Amnesty International, as its opposition; in fact, CATW will not use the term “sex work.”

“The truth is that what we call sex trafficking is nothing more or less than globalized prostitution,” CATW co-director Dorchen Leidholdt — now head of legal services at Sanctuary for Families, another WWE co-founder — remarkedat an anti-“demand” conference in 2003. “What most people refer to as ‘prostitution,’” Leidholdt added, “is usually domestic trafficking.” For these groups, SESTA is another step in a decades-long fight against sex work that hinges on explicitly collapsing any legal difference between sex work and trafficking. WWE founding co-chair Anne K. Ream describes SESTA as a law that “will strike a blow to those who buy and sell other human beings.” In a January Senate briefing, WWE’s talking points on SESTA said what they really wanted was an end to the “global sex trade.”

Along with lobby groups like WWE, an anti-Backpage documentary I Am Jane Doe also helped create demand for SESTA and FOSTA. Original SESTA co-sponsor Sen. Rob Portman (R-OH) has hosted screenings of the film in his home state. The film’s director, Mary Mazzio, has become a prominent advocate of the legislation, producing a PSA with comedians Amy Schumer and Seth Meyers telling the camera, “#IAmJaneDoe.”

As FOSTA neared a vote in the House earlier this month, Mazzio’s production company used its marketing lists for lobbying, sending out a sign-on letteraimed at Congressional representatives to the film’s supporters. The I Am Jane Doe letter garnered support from groups like Expose Sex Ed Now, which advocates against comprehensive sex education, along with the National Decency Coalition, The Institute on Religion & Democracy, and Family Watch International, groups that lobby for the “traditional” family and who oppose abortion. Another signer, the National Center on Sexual Exploitation (formerly known as Morality in Media), has long led its own anti-sex work campaigns, blaming pornography for trafficking.

House Republicans have borrowed from these groups in their arguments for FOSTA. In his floor speech ahead of the FOSTA vote, Rep. Doug Collins (R-GA) said human trafficking was about “wicked men and women” who “turn vulnerable young people into sexual commodities.” Rep. John Duncan, Jr. (R-TN) blamed “family breakdown” and “addicting our children to computers” for human trafficking. Rep. Ted Poe (R-TX) called traffickers “filthy criminals” while standing in front of a mug shot of a Latina woman.

Some women’s rights groups and advocates who might typically oppose such religious right groups became their allies on SESTA and FOSTA. In addition to making the rounds among anti-abortion, pro-“family” organizations, the I Am Jane Doe letter was also circulated by the women’s rights organization Legal Momentum, a SESTA supporter. Nation columnist Katha Pollitt, who signed the letter, told The Appeal she didn’t know about the bill’s right-wing supporters since she received it from Legal Momentum. But she didn’t think it was fair, she said, to hold the signatories responsible for each other’s politics, adding, “Sometimes the bitterest enemies agree about one thing.”

Survivors Against SESTA

While alliances across the political spectrum have formed in support of the legislation, trafficking survivors and their advocates largely oppose it. They have told The Appeal that trying to outlaw websites like Backpage is not the same thing as fighting trafficking or supporting survivors. In fact, it can have the opposite effect: putting victims of trafficking in danger.

The legislation’s most immediate impact might be a chilling effect on website operators, leading them to preemptively crack down on content posted by sex workers. “SESTA is about making internet platforms afraid to host ads for the sex industry,” Kate D’Adamo, a partner with Reframe Health and Justice, told The Appeal. And that could leave sex workers in more dangerous situations, she said. FOSTA is currently broad enough to possibly apply to content sex workers share online to ensure safer working conditions, like “bad date” lists, client screening tools, and safer sex education. FOSTA, said D’Adamo, could “threaten the harm reduction mechanisms people are using to stay safe when working, but none of that matters if you don’t have access to a safer space [to advertise] anyway.”

Nina Besser Doorley, a senior program officer at the International Women’s Health Coalition, echoed her concerns. “By taking away one of the few tools that sex workers have to organize and to screen clients, this bill increases sex workers’ risk of violence, making it harder to identify and support survivors,” she said.

The Freedom Network, the largest national network of anti-trafficking service providers and advocates, also opposes the bills. “Further criminalizing consensual commercial sex work, where there is no force, fraud or coercion, is no way to protect victims,” the group states in a press release. “Websites have an instrumental role to play in the investigation and prosecution of traffickers. They should be further incentivized and encouraged to report potential signs of human trafficking (both labor and sex trafficking of adults and minors) and child exploitation.” FOSTA and SESTA, advocates say, could make such sites less willing to participate in investigations, or, by pushing the sites to shut down, eliminate them as an investigative tool in identifying victims.

Their closure could also leave these workers more vulnerable to homelessness, arrest, and violence, said Caty Simon, a harm reduction activist and sex worker in Western Massachusetts. She expressed fear for the community she serves, which includes sex workers who use drugs. “Some of these women have recently clawed their way into the lowest rung of indoor work and out of homelessness, posting online while overpaying for a motel room every night,” she told The Appeal. “They’re still unstably housed and they’re still dealing with all of the bullshit of criminalization and poverty, but still, they tell me they are much safer and their quality of life is much improved. SESTA will send these women back to the abusive managers, cop violence, rape, and monotonous misery of street work.”

LGBT rights groups share these concerns about abuse and criminalization. Sex workers and trafficking victims alike “would be subjected to increased violence, exploitation, and more incarceration,” said Tyrone Hanley, policy counsel at the National Center for Lesbian Rights. The National Center for Transgender Equality (NCTE) also opposes the legislation. “Widespread discrimination leads many transgender people to engage in sex work to get by, and this legislation would make it even harder for them to keep themselves safe and find other economic opportunities if they choose,” said Kory J. Masen, racial and economic justice policy advocate at NCTE. “Limiting their access to safe working conditions and resources will exacerbate the problems of human trafficking, violence against women, and public health.”

Groups like NCLR and NCTE are relatively new to this conversation. They are among a range of national organizations that have not typically taken a stance on legislation that could harm sex workers but are now backing the cause. Meanwhile, sex workers and survivors of trafficking are leading a grassroots campaign (under the hashtags #LetUsSurvive and #SurvivorsAgainstSESTA). They are calling their senators and educating the public using social media. On Tuesday, NCTE and NCLR joined them to lead a SESTA briefing for Senate staffers.

Up to this point, opposition to these bills was primarily seen as coming from tech companies and their interest groups, who the legislation’s supporters claimed were willing to sacrifice women and children’s safety for “profit.” However, with opposition from national women’s and LGBT health and rights groups, it is clear the opposition is not just about tech companies’ attempts to protect themselves and their own bottom line. Besides, the Internet Association, a trade group that represents almost every major internet business — from Twitter to Amazon to PayPal to Netflix to Airbnb, and even Google — says that after certain changes were made to the legislation, its members are now in support.

The legislation’s opponents face an uphill climb. The alliance of anti-sex work women’s groups and religious right groups pushing SESTA and FOSTA has long been instrumental in winning bipartisan backing for these kinds of “anti-trafficking” bills in Congress, part of advancing a shared anti-sex work agenda. Yet in this case, perhaps the most significant coalition-building support came from Facebook’s Sheryl Sandberg, architect of the women’s empowerment platform LeanIn.org. Sandberg’s endorsement, straddling feminism and Silicon Valley, even found its way into the daily email alert from House Majority Whip Rep. Steve Scalise (R-LA) on the morning FOSTA went for a floor vote.

If women’s rights and religious right groups could make common cause, so could Sheryl Sandberg and Ivanka Trump, another prominent supporter of the legislation. The first daughter, the White House said earlier this month, has met with trafficking survivors — along with the president. This administration, his press secretary insisted, will “ensure survivors have the support they need.” On Tuesday, Ivanka Trump gathered SESTA and FOSTA co-sponsors in the Roosevelt Room, along with I Am Jane Doe director Mazzio. “On behalf of the president,” Trump thanked the roundtable participants for their work “to end the shameful and tragic crime of online sex trafficking.”

Pennsylvania Democratic Attorney General Shuts Down Bids for Freedom

Pennsylvania Attorney General Josh Shapiro
Jessica Kourkounis/Getty Images

Pennsylvania Democratic Attorney General Shuts Down Bids for Freedom


Pennsylvania’s Democratic Attorney General Josh Shapiro may be eyeing a run at the governor’s office in 2022, yet his law-and-order voting record on the Pennsylvania Board of Pardons suggests that he is playing to Democratic primary voters of a bygone tough-on-crime era.

Last November, Philadelphians elected Larry Krasner, an outspoken civil rights lawyer who pledged to fight mass incarceration, as district attorney. By contrast, Shapiro is using the power of his office to ensure that some of the lifers most deserving of release — including at least one who has demonstrated that he has been deeply rehabilitated—die in prison.

On December 14, Shapiro denied William “Smitty” Smith, an elderly prisoner from Philadelphia who was convicted and sentenced to life imprisonment for his role in a 1968 murder, one of his last shots at freedom. In Pennsylvania, lifers are not eligible for parole. As of 2016, Pennsylvania recorded the highest number of prisoners serving life without parole sentences — 5,398 — of any state excluding Florida, according to The Sentencing Project. That’s roughly the same size as the total Pennsylvania prison population in 1968, when the crime was committed. Smith was an accomplice to the crime, has expressed remorse, and the victim’s son has told reporters he is okay with the state offering Smith a second chance. Shapiro dissented from his three colleagues on the Board of Pardons by casting the sole “no” vote on Smith’s application to have that sentence commuted.

Joe Grace, Shapiro’s communications director, told The Appeal that Shapiro would not explain specific votes but that he “examines each commutation application based on the facts and circumstances of each case and the applicant’s desire to atone for his or her crimes … while always standing up for crime victims and every Pennsylvanian’s right to public safety.” When challenged that his vague statement would be an abdication of Shapiro’s responsibility to clearly explain his decisions on the Board of Pardons to the public, he warned, “[b]e careful what you write.” Grace later apologized and said he had not meant the comment as a threat.

Today, Smith is a 76-year-old hobbled by a stroke. In most every sense, he is a different man than the 26-year-old who rushed into a Southwest Philadelphia check-cashing store in 1968 alongside his accomplice William Barksdale, who shot and killed the owner, Charles Ticktin. Smith is a model of rehabilitation who has thrived in prison; his many accomplishments include playing guitar for Power of Attorney, a funky and soulful prison rock band that released an album on Polydor.

 


Ending mass incarceration will require much more than embracing the non-threatening aspects of criminal justice reform, like reducing sentences for non-violent offenders.

It must include a new approach to violent offenders, who make up roughly half of the state prison population nationwide. As a candidate for Pennsylvania attorney general, Shapiro declared that “the time is now to advance real criminal justice reform.” But a vision of reform that includes condemning Smith to die in prison rings hollow to many observers, given that the tools are available to shorten his imprisonment.

For years, the commutation of life sentences was a commonly used tool to reduce a life sentence in Pennsylvania. Milton Shapp, who was the Democratic governor from 1971–79, commuted 251 sentences. As the war on crime ratcheted up, however, the number of commutations plummeted. Republican Dick Thornburgh, in office from 1979–87 and later picked as President Reagan’s attorney general, commuted just seven. His Democratic successor, Bob Casey, commuted 27. And commutations all but disappeared after 1994, when Governor Casey commuted the life sentence of Reginald McFadden, who went on to kill two and brutally rape another shortly thereafter.

“You met him, and you look into his eyes, you knew that he was deranged,” Tyrone Werts, one of just five lifers to have their sentence commuted under Governor Ed Rendell, said of McFadden when I was reporting my 2014 profile of Smith. “The system saw fit to let him go. But if they would have came around to different prisons [and] said, ‘What do you think about McFadden? You think that he’s a good candidate for commutation?’ ‘Hell no, [don’t] let that crazy motherfucker out.’”

Why, during a law and order era, was such a seemingly horrible candidate for a commutation one of the few to be released? The one person who voted “no,” then Pennsylvania Attorney General Ernie Preate, told me that McFadden was released in part because of his cooperation with correctional authorities during a 1989 uprising at the State Correctional Institute at Camp Hill. Back then, approving a recommendation of commutation to the governor required just a majority vote. That would soon change.

McFadden’s atrocities humiliated then Lt. Governor Mark Singel, who ran in 1994 to succeed Casey as governor and voted “yes” on his commutation application. Republican Tom Ridge beat Singel, running on a tough-on-crime campaign pitched to the maximally punitive political environment of the mid-1990s. George W. Bush later appointed Ridge to be his Department of Homeland Security secretary, calling him “a man of compassion who has seen what evil can do.”

After taking the governor’s office, Ridge launched a special session on crime, and legislators sent voters a successful referendum on commutations: from there on out, the Board of Pardons seat once claimed by a lawyer would go to a victim’s representative instead; more importantly, a commutation recommendation to the governor for those sentenced to life in prison would require a unanimous, and not majority, vote.

In 1992, Smith received just that: a unanimous recommendation that his sentence be commuted. But Governor Casey never signed off. Smith believes that his application was sitting on the governor’s desk as McFadden’s murders dominated the headlines. He continued to apply but was repeatedly rejected, including when Republican Lt. Governor Jim Cawley cast the sole “no” vote to deny his 2008 application. Lt. Governor Singel’s experience with McFadden had become a defining one for Pennsylvania politics, one that shut the prison gates for most lifers.

More recently, it seemed like Smith’s best shot was for Republican Governor Tom Corbett to be voted out of office, and that Cawley would likewise be replaced by a Democrat. That happened after Democrat Tom Wolf knocked Corbett out of office in 2014, and Mike Stack took the lieutenant governor’s seat on the board.

But in December, Shapiro cast a “no” vote.

“We all assumed it was just going to be so easy for Smitty this time with this current administration,” Kathleen Brown, a retired professor of nursing at the University of Pennsylvania and a leading advocate for sentence commutations, told In Justice Today. “So we were very surprised when he said ‘no.’”

In 2016, Brown visited Smith while he was recovering from his stroke at the Laurel Highlands state prison, a medical facility. Surrounded by elderly inmates who were sick and dying, Smith was losing hope. But convinced that he had a good shot at a commutation with Democratic Governor Wolf in office, he fought his way back to wellness.

“I’m just scared that this disappointment is so huge that it will turn his rehabilitation around,” Brown said. “He really worked hard. Now this.”

Indeed, Smith’s son, William Harris, says that his health declined after the hearing and that he couldn’t locate his father within the system for weeks.

Harris, who testified alongside his uncle at the hearing, was stunned by the Shapiro’s no vote. “You just question why the other three said ‘yes,’” he said, “…and one person said ‘no.’ It leaves you empty trying to figure that part out.”

Now, Harris, like Brown, worries that Smith will lose the hope that has kept him alive, and die in prison. He was just a little over a year old when his father was arrested.

But it’s not just Smith who received a “no” vote from Shapiro.

The same night he condemned Smith to a possible death behind bars, he also cast the sole “no” vote to deny commutation to a man named Edward Printup. WGAL, a Pennsylvania NBC affiliate, recently aired a three-part series on his case. Printup, now 57, says that he killed his abusive stepfather in 1980 at age 19 to ward off “another one of his famous beatings.”

“He would just beat my brother literally until he bled down the back of his legs,” his sister, Michele Printup, told WGAL.

“When he shot our stepfather, the abuse stopped.”

In a statement, Lt. Governor Stack called the “no” votes “a stunning disappointment that left me, and many other advocates for criminal justice reform, wondering whether we had lost the momentum toward change and were heading backward.”

“It’s a bad, bad story about a kid who’s undereducated, who’s physically abused,” said Brown. “I believe him when he says the intention was not to kill him. The intention was to scare him off because he knows what’s coming. He shoots him. He dies … no intent, just scared.”

Shapiro’s votes on Printup and Smith suggest that the path out of prison for Pennsylvania lifers remains narrow.

There is, however, another sign of hope. Philadelphia District Attorney Larry Krasner recently hired Patricia Cummings, a Texas attorney with a track record of freeing the wrongfully convicted, to overhaul his office’s conviction integrity unit. Recently, Cummings told The Philadelphia Inquirer that “conviction integrity also encompasses fair sentencing” — what observers say would likely be an unprecedented move to ease the harshness of the American criminal justice system. But that might be too late for Smith. His best shot is an upcoming vote at the Board of Pardons to reconsider their decision.

“I hear he has some political aspirations,” Brown said of Shapiro. “I guess I don’t understand enough politics to know how that helps.”

Shapiro seems to believe that combining attacks on Trump — as attorney general, he has signed on to lawsuits targeting the Trump administration — with a conventional tough-on-crime record might shore up the party’s liberal base while appealing to more conservative voters outside the big cities. Lt. Governor Singel’s vote on McFadden, after all, still casts a long, Willie Horton-like shadow over criminal justice politics in Pennsylvania. The possibility that a “yes” vote gone wrong might destroy a political career continues to outweigh the suffering of prisoners who, by every conventional measure, deserve their freedom.

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

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

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.

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.

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