Billionaire Pushes Marsy’s Law To Victory in Six States, Despite Concerns That It Threatens Defendants’ Rights

Marsy’s Law, a controversial effort to define crime victims’ rights through amendments to state constitutions, won handily in six states on election night, even though it has been successfully challenged, amended, or blocked in several other states that have adopted it.

The ballot measures in Florida, Georgia, Kentucky, Nevada, North Carolina, and Oklahoma were financed by an organization launched by Henry Nicholas, a California tech billionaire whose sister Marsalee (Marsy) Nicholas was killed by her ex-boyfriend in 1983. These six states join five others that have enacted versions of Marsy’s Law.

“No murderer should be afforded more rights than the victim’s family,” the campaign’s website explains. “Marsy’s Law would ensure that victims have the same co-equal rights as the accused and convicted—nothing more, nothing less.”

Marsy’s Law faces growing opposition nationally, from civil liberties advocates, public defender associations, and some victims’ services organizations.

But that’s not the way Marsy’s Law is designed, critics contend. Rather than offering parity to victims, they say, it endangers the rights of defendants.

Nevada’s amendment, for instance, allows a victim “to refuse an interview or deposition request, unless under court order, and to set reasonable conditions on the conduct of any such interview to which the victim consents,” a provision defense attorneys fear will limit their access to key evidence.

“It’s probably very hard hearing about the ‘due process’ rights of the person a victim’s family is certain was responsible for a crime. But due process is a necessary check on the government’s power to incarcerate or even execute a human,” Dayvid Figler, a criminal defense attorney based in Las Vegas, wrote in a recent editorial against the measure.

Marsy’s Law faces growing opposition nationally, from civil liberties advocates, public defender associations, and some victims’ services organizations.

Each state’s version varies to some extent, but all include features outlined by Marsy’s Law for All, the foundation started by Nicholas, a co-founder of the semiconductor company Broadcom. When his sister’s killer was released on bond, Nicholas’s family felt blindsided. He first passed Marsy’s Law in California in 2008. Since then, he has crusaded state by state for constitutional amendments.

In Florida, his foundation poured nearly $37 million into the campaign, more than it spent in the other five states combined.

Florida’s version, known as Amendment 6, gives victims input into whether a defendant is eligible for bail or parole. Victims will have the right “to be heard in any public proceeding involving pretrial or other release from any form of legal constraint, plea, sentencing, adjudication, or parole, and any proceeding during which a right of the victim is implicated.”

In Florida, California tech billionaire Henry Nicholas’s foundation poured nearly $37 million into the campaign.

More significant, perhaps, it limits the timeline for defendants’ appeals to two years in non-capital cases and five years for those facing the death penalty.

This is cause for serious alarm in Florida, where there have been 28 death row exonerations since 1973, said Melba Pearson, deputy director of the state’s American Civil Liberties Union. “This is setting up a very, very, very dangerous situation where innocent people … are at risk of dying because this window is being deliberately shortened,” she told The Appeal.

Florida’s Amendment 6 defines “victim” so broadly, opponents note, that it could apply to corporations.

Amendment 6 defines “victim” so broadly, opponents note, that it could apply to corporations. Imagine a scenario, Pearson said, in which a young man with no criminal record steals an Xbox from a “big-box store.” The state might be willing to offer him diversion, she explained, but under Marsy’s Law, “the big-box store’s corporate headquarters in, let’s say, Arkansas … they send their $800-an-hour corporate attorneys to come down and put pressure on the prosecutor and the judge, because they are the ‘victim,’ to put this young man in prison.”

Along with the ACLU, the League of Women Voters of Florida opposed Marsy’s Law. So did the editorial boards of the state’s major papers.

Marsy’s Law was born as a response to domestic violence, yet even some domestic violence organizations have declined to support it. The Iowa Coalition Against Domestic Violence and the Iowa Coalition Against Sexual Assault opposed the law, in part out of concern that it could be used against victims who are arrested when police are called to intervene in domestic violence or sexual assault. “Frequently, the presumption of innocence is not experienced by domestic and sexual violence victims, especially those from marginalized communities,” wrote the two organizations’ directors in a statement. “Women comprise a larger proportion of the prison population than ever, and most are survivors of violence.” The Kentucky Coalition Against Domestic Violence declined to take a position, citing similar concerns.

Marsy’s Law was born as a response to domestic violence, yet even some domestic violence organizations have declined to support it.

Though Marsy’s Law passed in Kentucky, it may not go into effect. In October, a judge ruled that the election result cannot be certified, as the language of the ballot measure did not adequately inform the public. It has faced stumbling blocks elsewhere as well. In California, parts of Marsy’s Law that mandate longer periods between parole hearings were ruled unconstitutional, and Montana’s Supreme Court struck down that state’s law entirely. In June, South Dakota voters passed a ballot measure to amend the version of Marsy’s Law they passed two years before, limiting the definition of “victim” to those directly harmed by a crime, and limiting the courts’ required disclosures to victims. In New Hampshire, the law failed before it made it to the ballot because the state’s House of Representatives voted it down, despite backing from the governor and state attorney general. And in Florida, the measure faced a legal challenge before it passed last night.

Victims’ rights were already part of Florida and New Hampshire state law, as they are in other states, one reason the ACLU in both states opposed Marsy’s Law. New Hampshire state law “has language that says a victim’s rights shall be enforced to the extent that they do not conflict with a defendant’s rights,” said Jeanne Hruska, policy director of the ACLU of New Hampshire.

When the state legislature considered Marsy’s Law, Hruska told The Appeal, ACLU New Hampshire supported a proposal to include that language in it, while Marsy’s Law supporters opposed it. “They want that conflict,” she said.