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Exploring Marsy's Law, On Nevada Ballots This Fall

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(Bret Hartman/AP Images for Marsy'sLawForAll.org)

Hand paired t-shirts hang in honor of victims of violent crimes during the Orange County Victims' Rights March and Rally, Friday, April 26, 2013, in Santa Ana, Calif.

Nevada voters this fall will have the opportunity to vote on a variety of ballot initiatives.

While one -- on energy choice -- has gotten much of the early attention and advertising dollars, another initiative is attracting notice.

It's called Marsy's Law, and it's also on the ballot in four other states this year.

But, what is it?

Beth Schwartzapfel recently wrote a feature on Marsy's Law for the Marshall Project, a nonprofit news outlet focusing on criminal justice issues.

"Marsy's Law is a constitutional amendment centered around victims' rights," Schwartzapfel explained.

The law outlines a number of rights for crime victims and their families, and gives them a chance to go to court if those rights were violated.

Some of the rights include being treated with dignity and respect, and being protected from the defendant.

Schwartzapfel explained those parts of the law seem reasonable. But some of the other parts of the law have sparked more of a controversy.

For instance, one right outlined in Marsy's Law prevents the disclosure of confidential information and records about the victim to the defendant, if they could be used to locate or harass the victim.

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The problem with that provision is it conflicts with the right of a defendant to get what is known as discovery evidence about the case.

Under the Constitution, defendants are entitled to get all information about their case from the police and prosecutors' offices.

"There are some states where Marsy's Law has prevented defendants from being able to get the papers and documents in their case -- from being able to see the evidence against them," Schwartzapfel said.

She said in those states, constitutional rights of the victim and of the defendant are pitted against each other.

That isn't the only problem with the law, Schwartzapfel explained.

Right now, most district attorney's offices have victim/witness advocates who work as liaisons between prosecutors and victims or witnesses. These people inform about court appearances, bail releases and other important steps in the case.

The advocates are especially important in violent crimes. But Marsy's Law takes the idea a step further.

"What Marsy's Law does is makes it mandatory in every case -- and by every case, that means literally every case that has a victim," Schwartzapfel said.

She said in South Dakota, prosecutors felt obligated to contact victims for even the smallest crime like shoplifting from a dollar store or theft of Christmas presents from the front seat of a car.

Not only do they have to be contacted, but under the law, they must be contacted before the defendant's first public appearance, which can be within hours of the crime.

Schwartzapfel said the number of cases that would involve in a large city like Las Vegas would be staggering.

"You're talking about just a volume of cases could make your head explode," she said.

In South Dakota, the budget for the victim/witness advocates office had to be doubled.

Besides the extra work and cost, hearings were postponed or delayed, and people had to sit in jail for extra days while prosecutors found victims.

And often when the victims were tracked down, they simply didn't care to know where the case stood.

"Here they were spending precious resources [...] performing this service that victims didn't even want," Schwartzapfel said.

Prosecutors in many California cities where the law was passed in 2008 started to enforce it only in major cases.

"It's just not workable," she said. "The intent of the law was to provide services to victims who really need them, and we're basically going to follow the intent of the law because it is just not possible to do otherwise."

In another case, the law prevented a widow from getting information about the car crash that killed her husband.

When the woman asked for the report about the crash, she was told she couldn't under Marsy's Law -- someone else involved in the crash had invoked the law's privacy provisions, which meant information couldn't be released.

"The law, because it is a combination of extremely specific and maddeningly vague language, sort of gives all these rights without making it clear how they should be enforced, or what the parameters for enforcing them are," Schwartzapfel said.

It is the way the law is written, and how it is passed, that is at the heart of  part of the opposition to Marsy's Law.

The law is being pushed almost single-handedly by a tech billionaire named Henry Nicholas.

Schwartzapfel explained that Nicholas' sister was murdered in the 1980s. But his family was not informed about many of the steps in the case.

At one point, his family ran into the accused murderer in the grocery store because no one told them that he had been released on bail.

The way the system treated Nicholas and his family sparked his crusade and prompted him to craft the amendment. He has bankrolled much of the push to get Marsy's Law passed in states throughout the country.

Schwartzapfel said because it is mostly Nicholas bankrolling the foundation he set up to push the law, he doesn't have to compromise on any provisions in it.

"Marsy's Law has run into a lot of problems in the states where it has been implemented precisely because it hasn't been a product of a compromise," she said.

She said the provisions in the law sound good on paper but they don't work in practice.

And as those who oppose the law -- groups ranging from prosecutors, law enforcement, victims' rights advocates and defense attorneys -- have not had the same financial power to get their message out, it has passed.

Schwartzapfel said an exception to that was Illinois. In that state, stakeholders, including police, prosecutors, and victims' rights advocates, worked together on a bill that laid out some of the same protections for victims without some of the problems existing problems of Marsy's Law. Then they called in Nicholas' group to help pass it.

Guests

Beth Schwartzapfel, the Marshall Project

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