In Major Threat to Due Process, Marsy’s Law Gains Ground Nationwide

Alongside the major criminal justice reform headlines that came out of the midterm elections, a quieter trend also gained momentum through the ballot box: a budding, national threat to due process and the Fifth Amendment of the U.S. Constitution.

On Nov. 6, six states adopted, through ballot initiatives, what is known as “Marsy’s Law,” which enshrines a specific set of legal rights for victims of any crime — violent and non-violent — in state constitutions. Broadly speaking, providing rights to crime victims, such as notification if a defendant escapes custody, is a positive concept that we strongly support. But what the $71.8 million worth of ads and publicity for the six ballot measures didn’t mention is that Marsy’s Law directly targets defendants’ rights, including a bedrock of our criminal justice system – the presumption of innocence.

The Marsy’s Law campaign is the work of entrepreneur and philanthropist Henry Nicholas, whose sister, Marsalee Nicholas, was murdered in 1983 and whose family was confronted by the person accused of the crime while he was out on bail. Nicholas sought to prevent victims’ families from having to endure similar experiences.

Marsy’s Law, however, goes far beyond increasing notification to crime victims. The campaign claims it is striving to make victims’ rights “equal” to defendants’ rights under as many state constitutions as possible and eventually the U.S. Constitution. But comparing victims’ rights to defendants’ rights is a dangerous false equivalency.

Defendants’ rights, most notably the presumption of innocence, ensure due process, thereby limiting the government’s power of arresting and incarcerating anyone for any reason. The principle of innocent until proven guilty, for example, prevents the government from simply declaring the defendant guilty and forces it instead to present evidence and defer to a judge or jury to make any declaration of guilt before depriving someone of their liberty.  

On the contrary, victims’ rights, as articulated by the Marsy’s Law campaign, are not rights against the state, and they are certainly not restrictions on state power. Instead, they are primarily rights against the defendant, which presuppose the guilt of the accused before a verdict has ever been rendered.

For example, Marsy’s Law grants victims the right to reasonable protection against the accused. Not only is “reasonable protection” not defined, but this right puts the cart before the horse because a right of protection that applies prior to a conviction effectively presumes that the defendant is guilty. Furthermore, it’s also unnecessary. The judicial system already provides for pretrial protections, like restraining orders, that can be sought outside of a criminal trial and without directly impacting the presumption of innocence.

Additionally, in many states, Marsy’s Law provides victims the right to deny evidence to defendants and their lawyers. At present, a defendant has a constitutional right to all evidence that could prove their innocence. With Marsy’s Law, a defendant’s fundamental right to all exculpatory evidence is pitted against a victim’s right to refuse access to that evidence.

Under traditional criminal procedure, a judge decides whether information sought by a defendant from a victim is relevant to the defendant’s case. Marsy’s Law, however, restricts the judge’s authority because of a victim’s new constitutional right to deny evidence. Moreover, because a victim would be able to refuse to provide information to the court and the defendant, a jury would be denied exculpatory evidence that is otherwise admissible under the rules of evidence.

Such fundamental due process denials strengthen the hand of government against the accused, eroding at least two foundational legal principles: the presumption of innocence and the right to defend oneself. The risk of mistakes, abuse, and even unjust convictions of defendants for crimes they did not commit would only increase.

And finally in some states, including Florida, a version of Marsy’s Law strives to limit the amount of time during which a defendant can appeal a conviction, including by allowing only five years to appeal a capital conviction. Yet more than 165 people have been exonerated from death row in the United States, with many of those exonerations coming only after years and years of appeals. In Florida alone, 28 people have been exonerated from death row. Limiting time for appeal could very well result in innocent people being left in prison — and even executed.

Before the midterm elections, 30 states already provided some type of legal rights to victims in their state constitutions without undermining due process. Nevertheless, Nicholas’s campaign continues to push his problematic version of victims’ rights legislation with success. In total, 11 states could soon have Marsy’s Law enshrined in their state constitutions, with the hurdle being ongoing legal challenges against the ballot process in a couple of states.

This is only emboldening Nicholas and his backers to keep pursuing what they’re really after — amending the U.S. Constitution with Marsy’s Law and further undermining the due process protections guaranteed by the Fifth Amendment.

If we are to have any faith in the criminal justice system, a defendant’s rights must be diligently and fully enforced. Nearly every day, we are confronted with headlines about the fallibility of our judicial system. The least that we can and must demand is that individuals confronted with the full force of the government have their rights against that state fully enforced. Otherwise, the integrity of our criminal justice system will only be furthered called into question — and rightfully so.  

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Anonymous

This article brings up the horror and pain of my own unresolved nightmare in the criminal justoce system. Everything you point out is so true. I went through this when a family member called the police and accused me of doing something that i was then arrested for, wothout any evidence other than his claims. When i finally got to read the police report, i read -with disgust- his knowingly false claims that i was 'schizophrenic', and thats when i understood how easily that label prejudiced the police to believe his claoms, while completely dismissing anything i said.
Not only was i arrested once, but this sadistice liar did everything possible to continue playing that victim, using his status as immunity, in order to get away with terrorizing me for months with threats and abuse, while he was also calling police, filling out false complaints that had me arrested 2 more times. I felt like his captive prey, whenever police woild come upon me without warning to arrest me again, accusing me of threatening him or whatever else he would tell them. They NEVER questioned it, and never considered that i had anything to say.
I thought it would eventually end, and that i have my day in court, that the truth would finally be told, that justice would prevail...
I waited to go to court to defend myself for almost a YEAR, before i actually left the state as a fugitive! Why? Because i didnt live in that state! And yet, i couldnt leave until the case was resolved.. this "criminal" case.. and i was forced to live in my car for almost a YEAR just waiting for "speedy trial" to be over, to be able to go home with justice, and my dignity!!
Instead, my life has been devestated and torn apart. i am spiritually broken, extremely traumatized and every day an open wound.
This campaign would give people like my brother even MORE power to make any accusation, to say and do whatever they please with immunity, while people like me are immediately assumed to be GUILTY.
We CANNOT ALLOW people who claim to be victims to have free reign over the justice system just because they CLAIM to be a victim!!! Even now, once someone is 'considered' a victim by the police or DA, nothing is ever questioned.
I will never, NEVER get justice because of this. And this campaign to give 'victims' even more power terrifies me..
Wake up from your naive stereotypes and realize that people lie! Dont enable them!

Dr. Joseph Goebbels

It's called "playing the victim card", like the ever poplar "playing the race card".

Anonymous

You are the victim of a Malignant Narcissist. It is a type of sociopathy/psychopathy. I encourage you to look it up and learn as much as you can about it. I'm very sorry this happened to you.

Brett Engmark

I can imagine someone in favor of these 3 efforts, to be falsely accused and incarcerated of a crime by someone seeking revenge. That same accuser holding back the only evidence that proves innocence. Then the "victim" comes to their senses after 5 years, (as time will do), and releases proof of evidence, but alas, innocence doesn't matter because the falsely accused has been in jail for 5 years. Sounds like some fascists state.....

Can these laws pass litmus test of the SCOTUS?

Anonymous

With today's SCOTUS? Probably..

Anonymous

Florida seems to be the capitol of corruption . 5 year limit then make it 5 years to convict for crimes , they do not want it fair . It is so unbalanced now , you cant get much worse ! horrible bill !

Anonymous

I also often wonder why courts take un-cross-examined statements from victims and others during sentencing. How is that fair?

Anonymous

As a warning to the American Justice System, this week The Washington Post newspaper ran an article about the corruption of the Japanese Justice System. In Japan there are virtually no checks & balances on prosecutors (by judges). If indicted, the conviction rate exceeds 90%. The truly alarming consequence of this type of justice system is that the Japanese citizens, Japanese media and Japanese Press blindly embrace the prosecutor's action without question. Once someone is indicted - the citizens, media and Press fall into line with the prosecutor's version of truth. By contrast. the American system in the 1700's studied over 2000 years of "why governments and empires collapse". James Madison, Alexander Hamilton and John Jay designed a justice system with strong checks & balances on prosecutors. Hamilton, the primary architect of the American Justice System, intentionally designed "obstacles to success" [verbatim language] to slow down and obstruct prosecutors. The reason: the American design placed the "burden of proof" not on the "accused" but on the "accuser" (usually represented by the prosecutor). The American system, in order to prevent totalitarianism, considered it far worse to indict the wrong suspect than to win a conviction. Winning, by prosecutors, was not the goal. The goal was a fair trial, with a fair discovery process where the "accused" was allowed to confront all "accusers", evidence, witnesses and exculpatory evidence as well, Most important there was a healthy risk of criminal penalty for prosecutors, police, witnesses and accusers to tell the truth under legal penalty. This legal requirement helped prevent false accusations and some corrupt practices by some (not all) prosecutors. The Framer's premise of checks & balances was essentially all power can become corrupt - there are no "Good Guys vs. Bad Guys". All power essentially needed an equal counter-balance to keep everyone honest. If not we have a totalitarian police state - not individual freedom.

Amir

Ohhh so now the ACLU is in favor of due process after refusing to defend Justice Kavanaugh when he was accused of gang rape without a shred of supporting evidence. Let’s also not forget the ACLU said the occused have “too many rights” following the change in policy made by Secretary DeVos at the Dept of Education for made accused of crimes.

Anonymous

Kavanaugh was not on trial, and evidence was presented to support Ford. DeVos' changes at the Department of Education have to do with collegiate discipline boards, not criminal courts. Life's too short to be an ignorant propaganda mouthpiece

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