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The first question Nevada voters will see on their ballots deals with victim’s rights.
It’s known as Marsy’s Law.
Nevada is one of five states considering the measure that promises an array of rights for victims, including broadening the definition of what it means to be a victim.
It started in California in 2008. Since then, six other states have passed the law. But it’s been met with some criticism.
Will Batista is the state director of the group, Marsy’s Law for Nevada.
Marcy's Law is said to be an expansion of victims’ rights, but can you explain exactly what that means and how it will work?
Currently, the state of Nevada does have a constitutional language for victims of crime; however, it's not enforceable and it's not strong enough. What Marsy’s Law would do is essentially strengthen victims’ rights and the Nevada Constitution and it would also elevate them from just statutory rights to the constitutional level.
So, how could a victim of a crime benefit from this?
"We really harp on several different aspects of it: notification, privacy, restitution are some of the bigger ones that we talk about.
When it comes to notification, for example, we want to make sure that victims of crime are notified about every step in the process. And so, what that means is if there's a bail hearing, if there a change in status, if the person fled or broken out of jail, we want to make sure that the victim stays involved…That also includes after conviction and if there's a parole hearing, we want to make sure that the victim is also notified that there is a parole hearing coming up for example and that their voice is going to be heard.
And so that's one other aspect as make sure that victims have a voice in the criminal justice process. A guaranteed voice.
We come across a lot of cases where victims have been given the opportunity. We want to make sure that it's standardized across the state of Nevada making sure that regardless of where you live that you're going to be treated the same exact way and you're going to have the same exact rights.
The other aspect is privacy. The privacy aspect is really big especially when it comes to victims of domestic violence. Many times, when someone is in fear or in danger of someone and they take out a temporary restraining order, what often happens is that that person provides where they live, where they work, places that they frequent… then that information is given to the person that they're in fear of to say, ‘hey, you should avoid this person at this location at this time.’
We want to make sure that that's not the case because what you're doing is essentially providing a roadmap to re-victimization. We want to make sure that it's a constitutional right that you have privacy observed in all cases.
And of course, restitution. We want to make sure that if there's any restitution involved that that first goes to the victim. We want to make sure that these folks who have had considerable losses, in many cases, that they're actually receiving some form of compensation.”
When it comes to defining victim, who would be considered a victim if Marsy's Law passes?
“The definition of victim in this ballot measure is similar to the definition of a crime victim using federal law. So right now, that would mean that it is anyone in direct or proximate harm. So, if you're a direct victim of crime, obviously, a crime directly impacted you… Proximate harm is often next of kin or in proximate danger. So, if I was in the vicinity of you and I'm a witness that's different than being a victim.”
We can't talk about Marsy's Law without explaining who Henry Nicholas is. He has been the driver of this initiative in many states. Nicklas is a billionaire and the co-founder of Broadcom. His sister Marsy was shot and killed in 1983 but because of how he and his family were treated during that ordeal Nicholas has poured some $25 million into the initiative bearing his sister's name.
Critics of Marsy's Law have said this is a crusade of a very rich man that has been successful because of the money he has to throw behind it. What is your response to that?
“Dr. Nickolas's mission has always been to make sure that other families aren't re-victimized like theirs was. And just to expand on Marsy’s story, when that incident happened, when Marsy was murdered back in California, they ran into the accused and they had no idea that that person had been released. That was just kind of adding insult to injury in that situation. He made a promise that he was going to fight as best as he can to make sure that victims of crime wherever they are are treated with dignity and respect.”
Batista points out that getting the law passed is an expensive effort that in no way benefits Dr. Nicholas.
You've talked a lot about notifying the victims of what is going on at all times. Is there a time requirement for notification?
There's not a specific timeframe in the legislation itself. It says timely notification. Section 6 of the amendment actually says that the Legislature can make additional revisions or pass statutes to make sure that the state of Nevada complies with it to the best of their ability.”
Batista says Nevada is already part of the Victim Information Notification Everyday or VINE system that allows victims to access information at any time about their case and they can download an app on their phones that notifies them any time there is a change in the case.
So that notification portion wouldn't really change that much here in Nevada?
“It wouldn't. What we want to do is make sure that the victims are aware of where to find that information. We have the infrastructure in place and oftentimes victims do take advantage. But they're not always notified that that system even exists. We want to make sure that on the front lines that victims are notified of what their case numbers are where they can find information about that case or where they can sign up for this VINE system and also what resources may be available to them.”
Batista said both Clark County District Attorney Steve Wolfson and Clark County Sheriff Joe Lombardo support Marsy’s Law. He said that they would both be on the front lines of enforcing the law if it is passed.
Critics of the law have expressed some concern that Marsy's Law would drain resources or violate privacy in sexual assault cases. How can we be sure that this won't happen?
“I'm not sure where those arguments would come from. You know there's no resources that are going to be necessarily affected by this. At the end of the day, it is an opt-in system. A victim can choose not to be notified or choose not to participate. What Marsy's Law does it gives the victims the option it gives them a voice in the process. There is nothing in there that is going to necessarily have a spike in resources that need to be given to victims of crime.”
He said in states where the law has already been passed there hasn’t been a spike in people wanting to be notified or a spike in people claiming to be crime victims.
Everyone is entitled to due process. So how do we avoid creating a conflict of interest in the law when defendants have certain rights as well?
“Marsy’s Law does not affect due process whatsoever. In fact, we think due process is a very critical element of the criminal justice system. The presumption of innocence is something that the Constitution is based off of. What we're seeking to do is make sure that the victim is involved in the process as well and that they have equal constitutional rights.
Currently, those who are accused of crimes have a number of enumerated rights whether it's in the U.S. Constitution or state constitution, but victims of crime do not.
What we're seeking to do is just make sure that they have equal standing under the criminal justice system. We don't want more. We don't want less.”
You've mentioned working with different groups here to iron out some of the details of the law and you've said Nevada already has this robust system in place when it comes to protecting victims. So, give me sort of the bulleted version of what holes this would specifically fill?
“I said that Nevada has the infrastructure in place that doesn't necessarily mean that there are no holes that need to be filled. Privacy is a big concern. That's not currently being observed. Notification - we talked about that.
Restitution as it is also a big one. As it currently stands, people who have been victims of crime never receive a dime from restitution often because those monies are allocated to other funds.
Those are some of the biggest things that we see for need for Marsy's Law.”
Batista said it is important that Marsy’s Law is enshrined in the Nevada Constitution because a right outlined in the Constitution will override a right outlined in Nevada Revised Statutes.
“With putting this in the Constitution, you give victims a standing to assert those rights and to be able to petition the court to observe them, make sure that you know their privacy is being considered, that their safety is being considered, that they're not being harassed or harmed. So those are real things are going to help victims of crime.”
He said the effort is backed nearly every domestic violence prevention organization in the state and by law enforcement.
We mentioned the initiator of Marsy's Law - Henry Nicklas - he has had some run-ins with the law as well. He was arrested here in Las Vegas in August on suspicion of drug trafficking charges. He was then released. He went to trial would Marsy's Law end up affecting him in some way?
“I can't speak to that and I won't comment on an ongoing case. What I will say is that you know the protections for Marsy's Law are going to be for victims of crime.
There's a due process in place and we hope that that continues to be the case. And that's what we're advocating for a balance in the criminal justice system between the rights of the accused and the rights of victims of crime.
It sounds like Marcy's Law would give victims’ rights more teeth but how can we make sure that this just wouldn't become another law that can't actually be enforced?
“That's why we go back to the constitutionality of it. By placing it in the Constitution, you are essentially giving victims of crime standing in the criminal justice process.
Right now, if their rights are violated because they're in statute, there's no real way for them to petition the court because they don't have standing.
By placing it in the Constitution, you change that the person will then be able to petition the court and say, ‘hey, I wasn't notified or my privacy rights were violated or I haven't received restitution,’ or whatever the case is… By elevating it to the constitutional level, that solves a lot of the issues that we see.”
Batista says there is a procedural component and a cultural change to the law. He said the procedural part would make sure the victims’ rights are observed in the courtroom and the criminal justice process.
The cultural change is it would be part of the state constitution, which would supersede statutory rights and show that victims’ rights are a priority.
“The majority of states have already passed strong enforceable constitutional rights for victims of crime. And Nevada is just one of a handful who doesn't have strong rights for those victims of crime. We want to make sure that we are giving these victims the actual tools that are available to them to have their rights in forced, which they currently don't have.”
If this passes, how will that cultural shift start to play out?
“I think it's going to take some time because there are judges who allow victims to give victim impact statements, making it a requirement is going to be a change for maybe some of those who may not have had that as a practice before. That's going to take a little bit of adjustment. We feel that it's going to be a gradual change in the criminal justice process but that over time that it will just be standard practice that these are the things that need to be considered.
Will Batista, state director, Marsy's Law for Nevada
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