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

Victims’ rights campaign spent more than $70 million nationwide, with more than half of that spent in Florida.

Marcy's Law for All founder Henry Nicholas (R) with his mother Marcella Leach (L) attend the 2009 National Day of Remembrance for Murder Victims in Los Angeles, California.
Credit: David McNew/Getty Images

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

Victims’ rights campaign spent more than $70 million nationwide, with more than half of that spent in Florida.

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.

After Victory in Louisiana, Oregon Is Now The Only State Using Split Juries to Convict People

As in Louisiana, Oregon’s practice is rooted in its own rich history of white supremacy.

A second line parade in New Orleans campaigns for unanimous juries.
Yes on Amendment 2 Facebook video

After Victory in Louisiana, Oregon Is Now The Only State Using Split Juries to Convict People

As in Louisiana, Oregon’s practice is rooted in its own rich history of white supremacy.

On Tuesday, Louisiana voters overwhelmingly passed a ballot measure which will phase out the state’s Jim Crow-era practice of allowing split guilty verdicts in felony cases. The ballot initiative campaign was led by a coalition of grassroots organizations, but, after the state legislature agreed to put it on the ballot, numerous prosecutors, and even the state’s Republican Party, publicly backed the change.

With this widespread support, a majority of voters in nearly every district across the state voted to repeal the practice. Even Calcasieu Parish, where the local prosecutor controversially defended the practice while acknowledging its white supremacist origins, saw a majority of voters approve the initiative.

The now repealed Louisiana law was passed during a post-Reconstruction constitutional convention, where lawmakers openly declared that their mission was “to establish the supremacy of the white race.” And the law functioned as its writers intended well over a century after the fact. Historically, the law has disproportionately worked against Black defendants, who were convicted more frequently in cases when one or two jurors felt reasonable doubt about the accusations. An Advocate analysis of hundreds of felony convictions in parishes across the state found that 40 percent of such decisions came over the objections of one or two jurors. But the Black defendants in such cases had a conviction rate 10 points higher than that of white defendants, 43 percent versus 33 percent.

Across the state, roughly 2,000 people today are serving life sentences as a result of the law. People convicted on split juries, however, will not receive any retroactive benefits from the law’s passage.

Louisiana’s reform now leaves Oregon as the only state in the country that allows split juries to produce guilty verdicts for felony cases, other than murder. As Louisiana began to re-evaluate its rule, some efforts to bring Oregon in line with the rest of the nation have also started gaining steam.

Nonunanimous verdicts have sent hundreds to prison in Oregon. A 2009 review by the state’s Office of Public Defense Services Appellate Division of 662 cases on appeal found that there were nonunanimous verdicts in nearly 66 percent of cases where the jury vote was recorded. (The study was not necessarily a representative sample of all felony cases, but even its most conservative estimate indicated that at least 40 percent of all guilty jury verdicts in felony cases featured nonunanimity.)

As in Louisiana, Oregon’s practice is rooted in its own rich history of white supremacy. Much of the momentum for the 1934 constitutional amendment was sparked after public outrage over a manslaughter verdict for a case involving a Jewish defendant, Jake Silverman, the year prior. One of the 12 jurors objected to Silverman’s murder charge, and as a compromise he was convicted for manslaughter. In response to the verdict, Portland’s main newspaper published an editorial claiming that southern and eastern European migrants had spoiled the jury system.

“This newspaper’s opinion is that the increased urbanization of American life … and the vast immigration into America from southern and eastern Europe, of people untrained in the jury system, have combined to make the jury of twelve increasingly unwieldy and unsatisfactory,” the newspaper wrote. Explicitly citing the Silverman case the following year, opponents of nonunanimous juries campaigned for a state constitutional amendment, which passed with a 58 percent vote.

Over 70 years later, a consensus is growing that the rule should change—but the path forward is unpredictable. Olan Wilson, a Black man, is now challenging the provision in state court for violating the U.S. Constitution’s equal protection clause. In 2016, Wilson argued that he did not receive a fair trial because only one person on his jury was Black. The Black juror was one of two to vote not guilty, but these objections were overridden because of the nonunanimous jury rule. His case is working its way through the state’s appeals court, which could rule the practice is unconstitutional.

County prosecutors also tried to write their own ballot initiative to require unanimous juries, but quickly abandoned the effort. In January, citing issues of racism and bias, Oregon’s District Attorneys Association publicly declared that it would lead a campaign to repeal the law. At the time, Multnomah County District Attorney Rod Underhill proclaimed, “We stand emphatic and firm in our shared belief that racism, bias, prejudice and discrimination simply cannot play a role in a criminal justice system.”

But soon after the announcement, it came to light that the association intended to repeal another provision of the 1934 amendment that gave defendants the right to choose a jury trial or a judge-only trial. Defense attorneys and criminal justice reform advocates publicly opposed the measure. The DAs scrapped their proposal in response to the backlash.

What happens next is still up in the air, according to Aliza Kaplan, a law professor at Lewis & Clark Law School who is one of the major figures pushing for jury reform in Oregon. In an email, Kaplan noted: “There is a possibility of legislation during this session (and there seems to be support) that could get rid of them but it may be too legalistic to get there, so more likely, it will end up a ballot initiative.”

At least one outspoken Oregon prosecutor is hoping the system will stay the same. Josh Marquis, the Clatsop County DA and a member of the Board of Directors for National District Attorneys Association, argues that the split-verdict practice benefited the system by producing fewer hung juries—when a jury cannot come to a consensus—overall.

Fewer hung juries is not a just outcome, said Kaplan. Some prosecutors think hung juries “are a waste of resources,” she told The Appeal. “But if its a hung jury, it’s basically showing that the prosecution couldn’t prove their case beyond a reasonable doubt.”

Marquis, who is set to retire at the end of this year, acknowledges that the calls for reform have momentum and support from younger prosecutors. “There’s a broad push in the Oregon legislature, including from young DAs, most of them much younger and less experienced than me, to support it,” he said in a phone interview. “Until two years ago, I never heard defense attorneys complaining about it.”

Last month, Oregon’s House Judiciary Committee chairperson, Jeff Barker, told the Willamette Week that he expected a bill ending the practice to come before him.

The change could not come soon enough, argues Kaplan. The continuing use of nonunanimous juries “leaves us behind Louisiana on criminal justice issues,” she said. “I think that is incredibly sad and telling. It’s time we get rid of them.”

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Special Edition: Ballot Initiative Elections Guide

Special Edition: Ballot Initiative Elections Guide

Special Edition: Ballot Initiative Elections Guide

As you head to the polls today, look out for ballot initiatives that would reform the criminal justice system. As Daniel Nichanian analyzed for The Appeal: Political Report, 14 states are holding 18 referendums on measures relevant to criminal justice and law enforcement practices. The outcome of these votes, particularly those in Florida, Louisiana, Ohio, and Washington, could have tangible, far-reaching effects on the way justice is meted out.

Below, we highlight some of the most promising initiatives on the ballot.

FLORIDA: Voters could overhaul state’s regime of mass disenfranchisement and open the door to retroactively applying criminal justice reforms

Voter disenfranchisement

No state disenfranchises as many of its residents as Florida. Ten percent of its voting-age population is stripped of the right to vote because of a felony conviction, according to a 2016 report by the Sentencing Project. More than 20 percent of Black adults are affected. Florida is one of four states that disenfranchise people even after they complete a felony sentence. Floridians must wait at least five years after the completion of a sentence to even apply for voting rights to be restored. The application process takes many more years, and culminates in a hearing in front of the governor and other statewide officials. The board only hears a few hundred cases a year, and it enjoys full discretion over what questions to ask and how to decide. They can even decide based on how they believe a given person will vote in the future.

Amendment 4 would overhaul this system. It would enfranchise an estimated 1.5 million people by automatically restoring people’s voting rights once they complete a felony sentence, except for people convicted of murder or a sexual offense. The amendment needs the support of 60 percent of voters, a threshold that polls suggest is realistic.

But the very people whose rights are being decided are barred from participating in this vote. This referendum is the culmination of organizing efforts led by the Florida Rights Restoration Coalition and its president Desmond Meade, who is himself disenfranchised. Mother Jones and the New York Times Magazine recently published in-depth profiles of the coalition’s work.

Retroactive criminal justice reforms

Florida’s “Savings Clause” bars the legislature from reducing sentences that people are already serving, meaning that no sentence reform can be applied retroactively. This prevents meaningful decarceration. Florida is the state that goes furthest in barring new legislation from applying retroactively, according to the state’s Constitution Revision Commission.

On Nov. 6, Floridians will weigh in on Amendment 11, a measure to repeal the “Savings Clause.” It was placed on the ballot by the Constitution Revision Commission, which notes that people who committed certain drug offenses before Florida modified its sentencing statutes in 2014 are serving far longer sentences than people convicted of the same offense today.

Some Florida newspapers, including the Miami Herald and the Tampa Bay Times, do not endorse Amendment 11 because they worry that the National Rifle Association might push for making the state’s Stand Your Ground law retroactive. Melba Pearson, deputy director of the ACLU of Florida, which supports Amendment 11, argues that this concern is “valid” but “outweighed” by the positive changes the measure would bring about. “Amendment 11 would be a great vehicle for reducing mass incarceration,” Pearson told The Appeal: Political Report. As examples of reforms that could be made retroactive, she mentions revising mandatory minimum sentences, the suspension of driver’s licenses, and legalizing marijuana.

LOUISIANA: Amendment 2 would require unanimous jury verdicts, as in 48 other states

The writers of Louisiana’s 1898 Constitution couldn’t ban Black people from serving on a jury, but they circumvented that limitation by enabling juries to convict over the objections of holdouts who would have acquitted. Today, Louisianans can be convicted of any felony (including murder) by non-unanimous juries: Only 10 out of 12 jurors need to vote for conviction to get a guilty verdict. This has made trials likelier to end in a guilty verdict in Louisiana than elsewhere, which contributes to the state’s high incarceration rate and may increase the pressure defendants face to accept a plea deal. The New Orleans Advocate has found that Black defendants are more likely than white defendants to be convicted by a non-unanimous jury, and Black jurors are more likely to be the holdouts than white jurors. This law effectively diminishes Black people’s power as jurors and as defendants.  

Amendment 2, if adopted in November, would revise the Constitution and require unanimous jury verdicts for all felony convictions. The measure enjoys unusually broad support, including endorsements from both the Democratic and Republican parties. Its most prominent opponent is Attorney General Jeff Landry, who is preparing to challenge Governor John Bel Edwards in 2019. (Edwards supports the measure.) The Louisiana District Attorneys Association is staying neutral, and some of the state’s most prominent DAs have even endorsed it.

OHIO: Reform package would make drug possession a misdemeanor—retroactively

Issue 1 would cut incarceration by overhauling Ohio’s sentencing guidelines and probation system.

First, it would make possessing any drug a misdemeanor rather than a felony—at least for one’s first two convictions. People arrested for possession would generally no longer face prison terms. Five states have already reclassified drug possession as a misdemeanor, all since 2014. Second, it would bar reincarceration over minor probation violations that aren’t themselves a crime, such as missing an appointment. Third, it would allow people currently in prison to reduce their sentence by up to 25 percent by participating in rehabilitation programs. It would also make the new drug statutes retroactive: People currently incarcerated for drug offenses could petition for new sentences. Policy Matters Ohio, a group that backs Issue 1, estimates that these provisions combined would decrease the prison population by approximately 10,000.

TENNESSEE: Nashville considers an independent police oversight board

In the wake of a Nashville police officer shooting and killing Jocques Clemmons, a Black man who was running away, a community group, led by Clemmons’s mother, has pushed a referendum that would create an independent board empowered to investigate police misconduct. When the federal Department of Justice investigated Nashville’s broader policing practices in 2017, it recommended that the city consider creating an independent oversight board.

The Fraternal Order of Police and the Davidson County Republican Party are mobilized against the proposal; they argue that police officers are already held accountable through internal investigations and external offices like the district attorney. David Briley, Nashville’s Democratic mayor, says that he supports the idea of an oversight board but not this initiative, in part because of insufficient police input.

WASHINGTON: Ballot measure would change law that makes it nearly impossible to hold police officers accountable for excessive force

If voters approve Initiative 940, Washington would no longer be the only state in the country that requires prosecutors to meet the “malice burden,” a standard so high that it has made it nearly impossible to prosecute police officers for killing civilians. Current law protects officers from being held criminally liable for using deadly force if they act “without malice and with a good faith belief that deadly force is justifiable.” King County Prosecuting Attorney Dan Satterberg, who has complained about how difficult it is to get convictions in police shooting cases, has said the current law provides an “almost perfect defense to a mistaken use of force” and “has kept police officers out of court as defendants.” The Seattle Times compiled data in a special report on the 1986 malice law, finding 213 fatal police shootings in Washington between 2005 and 2014. The lone case in which an officer was criminally charged in the shooting of a driver resulted in a not-guilty verdict. [Steve Miletich / Seattle Times]

Initiative 940 would impose a two-part test to determine if an officer acted in good faith. One part requires proof that a reasonable officer would have used deadly force in the same circumstances. The other asks if the officer “sincerely and in good faith believed that the use of deadly force was warranted in the circumstance.” It would also require independent investigations into all police officers’ use of force that results in serious injury or death. Finally, it would mandate de-escalation and mental health training for all police officers, and create a duty for them to provide first aid. [German Lopez / Vox]

The initiative is supported by De-Escalate Washington, a coalition of civil rights groups, in addition to certain law enforcement groups and individuals, including King County Sheriff Mitzi Johanknecht and the Black Law Enforcement Association of Washington. Meanwhile, a group that supports local police officers has spent more than $111,000 fighting the initiative. The group laments that the initiative makes police “put greater emphasis on providing medical care to individuals instead of actually doing their job of protecting the community from crime.” They claim it would make communities less safe. Over half of the contributions to that group came from the Seattle Police Officers Guild and other police guilds have contributed significantly to fighting the initiative. [Kellen Browning / McClatchy]

OTHER CRIMINAL JUSTICE ballot measures to watch:

Florida, Georgia, Kentucky, North Carolina, Nevada, and Oklahoma vote on Marsy’s Law

These measures, which are broadly but not entirely similar, strengthen victims’ ability to testify at hearings, mandate that they be notified of certain developments, and often empower them to refuse to speak with defense attorneys; they also broaden who is classified as a victim. Critics argue that these measures promote punitive outcomes and harm defendants’ rights to be innocent until proven guilty and to due process, as Meaghan Ybos reported for The Appeal in March and Sophie Quinton for Stateline in October.

Michigan, Missouri, North Dakota, Utah vote on legalizing marijuana

Oregon’s 30-year-old ‘sanctuary’ law is under threat

Two Alabama counties might bar sheriffs from pocketing money designated for feeding prisoners

Thanks for reading. We’ll see you tomorrow.

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