The first question Nevada voters will see on their ballots next Tuesday deals with the rights of crime victims. It’s known as Marsy’s Law.
Nevada is one of five states considering a 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.
Marsy's Law advocates say it expands rights and protects the victims of crimes. Is it that simple?
“Absolutely not. It's far more complex than that. We've seen in several states where Question 1 or similar provisions like it Question 1 Marsy’s Law passed where it's been met with a variety of litigation. We've seen attempts to modify it because of implementation concerns and high costs. It's certainly not that easy.”
What does Marsy's Law do?
“From our perspective, it takes rights that already exist in Nevada statute and it's an attempt to make those rights constitutional, then it adds a variety of other rights that have clear conflicts with the rights of the accused that also sort of force and put a victim in the system at a stage in the proceedings when it's far too early for that individual to be either undermines the presumption of innocence because victims have the right under Question 1 or Marsy’s Law to be informed of proceedings and to attend different proceedings at very early stages before anyone has been charged with a crime, before anyone has had any kind of arraignment hearing, which we find very problematic.”
Is it problematic because of the paperwork involved?
“That's the problem. Actually, district attorneys’ offices in several different states have shown that they've had to take money from crime victim compensation funds in order to pay for those proceedings and the notification and getting their systems up to date so they can notify victims appropriately and not be in violation of Marsy's Law.
I think what's most important here is a direct conflict with the rights of an accused person. An accused person is entitled to the presumption of innocence. Right now, crime victims do have the very last word before sentencing. They are able to come and speak at parole hearings.
They have a certain number of rights that they're already entitled to more appropriate stages of the proceedings than Question 1 is forcing.”
California became the first state to pass this in 2008. Have they had difficulties with it?
“They have had several difficulties. There was actually a case that showed the way victims come into parole hearings and the weight that the parole board was giving to the victim's voice during those proceedings kind of operated like a victim veto, which is in violation of their parole and probation statutes. Because what you're supposed to be looking at when you're making that determination is how that individual performed while they were in prison. The likelihood of that individual being successful outside of prison. The risk to the community comes into that. The victim's voice has some weight when it comes to whether or not that individual will be a risk in the community, but it can't be the deciding factor.”
Welborn said there was also a case after Marsy’s Law was passed where then-Governor Arnold Schwarzenegger commuted someone's sentence and the victim was not notified and sued the governor because under the law they should have been notified.
Did California have to hire a lot of people in order to implement the law?
“In some counties, they did have to hire additional persons. The district attorney's office has to take on a larger caseload. It's not just California. South Dakota had serious problems in their district attorneys’ offices because you're no longer allowed to prioritize cases. So, a victim of petty theft is entitled to the same rights as a victim of a very violent murder. They have to wait for that notification and in order to proceed. That really causes a lot of backlog and a lot of strain on the justice system.”
Marsy's Law has bipartisan support in our legislature. If it was so bad how has it gotten this far?
“I think not politically appropriate. I've even heard people refer to it as you know political suicide to not support the Victim's Bill of Rights.
When we were working on this in the Legislature in both 2015 and 2017 that was the sentiment. A lot of the attorney lawmaker they have a lot of concerns with that and frankly we were even told, ‘the ACLU will take care of it. The ACLU will take care of whatever conflict exists.’ That's very difficult for us and the resources that we have, when really, they're not thinking about all of these unintended consequences that are going to occur if Marsy’s Law happens. The fact that it actually doesn't benefit victims. You have to hire an attorney in order to assert your rights under Question 1. So, this is really only going to apply to a small number of people who can afford that way.”
To be notified of the various hearings of the alleged perpetrator of a crime, you need a lawyer to have that right or will that just go out to you because you're part of the system?
“They have to notify everyone. When they fail, what Question 1 does is it’s supposed to provide protection when law enforcement or judges, etc., fail to comply with a component of Question 1 just like in other cases when somebody's constitutional rights have been violated they have to have an attorney to assert that constitutional right. It could be that the DA’s office finds out that it's too difficult to comply with Question 1 and they make a decision to do not notify until somebody has actually been charged with a crime. Technically, that person's right has been violated. They can bring a lawsuit against the D.A. office or the judges in that stage of the proceeding to force compliance with Question 1. But you still have to have an attorney who's going to file whatever litigation in order to have that government accountability.”
Clark County District Attorney Steve Wolfson supports Question 1. So does Clark County Sheriff Joe Lombardo. Do you think those two men support it because of the potential of political suicide not to support something that's called victims’ rights?
“I think that many lawmakers are very sincere in their desire to have enhanced protections for victims. I don't think that’s what we're saying that it's just because it's completely politically expedient. I do think that that plays into it.
We have talked to many prosecutors who are working on these issues throughout the country who have major problems with it such as in South Dakota where they actually amended it to make it an opt-in system where a victim has to assert their rights under their Marsy's Law from the outset. There are those issues with it.
This isn't the way to help victims. It's not serving the interests of victims who need not so much a remedy in criminal courts
The resources, the time, the energy and the money that will be spent on enforcing Question 1 really should go to the crime victim compensation fund, services for victims when they need housing, transportation, therapeutic assistance those types of programs where Nevada is consistently failing victims of crime currently, not in a constitutional amendment that few people will be able to assert.”
If it passes, could our legislature then modify it in ways to maybe make it less onerous?
“They would have to wait three years. That's what the Constitution requires when you pass a new constitutional amendment or a ballot initiative. They would have to wait several years before they could even talk about making those modifications to it. So, I think at the outset what we're going to see is a variety of lawsuits because there will be crime victims whose rights are violated at the outset. There will be questions about how to navigate this law when it comes to juveniles who are arrested for certain crimes. I think that those will come up at the outset and there will be litigation to interpret what Question 1 really means.”
Litigation by the ACLU?
“I don't think just us. I think that we'll see it from public defenders’ offices. I think we'll see it from different families of crime victims and defense attorneys. I think that a lot of people are prepared to fight that Question 1 does in fact interfere with the rights of criminal defendants.”
The person behind Marsy's Law is a man named Henry Nicholas. He's the founder of Broadcom and he spent about $25 million on this initiative. This is personal for him. His sister was murdered by an ex-boyfriend the 1980s and a week later his family ran into the murderer in a grocery store. He says he doesn't want this to happen other people. In your view, would Marcy's Law achieve what he wants?
“First, I just want to say it's without question that what Marsalee Nicholas and her family had to endure is a terrible tragedy and it was a failure of the system for her.
But it represents a failure of California's bail system at that time. They did not have appropriate notification laws in order to keep the family from having to experience that. Here in Nevada, there are requirements to notify people. If we're looking for an enhancement of that, then we need to enhance our laws that are currently on the books. Statutory law…that is the more appropriate place to enshrine victims’ rights not our Constitution that we can't change for three years. It's probably going to be in litigation for a decade or more. That's the more appropriate way of approaching this. So, no I don't think that it is going to achieve what they think it's going to achieve.”
In our interview with the state director of Marsy's Law for Nevada about a week ago, he said this could create a cultural shift in the criminal justice system in Nevada. Do you agree with that?
“I think it's more backlog taxpayer dollars that are going to be expended on complying with Question 1. I don't see much of a cultural shift when it's going to be in courts for decades or longer.”
Holly Welborn, policy director, ACLU of Nevada.
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