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

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

Anonymous

It's about balancing rights and having equal rights.

Anonymous

I don’t recall Judge Kavanaugh being indicted. While there is no constitutional Freedom of Being on the Supreme Court Until Proven Guilty, there is a Freedom of Due Process, and if Kavanaigh had gone to court, the ACLU would happily have defended his right to a fair trial.

Do you see the difference?

Anonymous

I have contacted d.o. j several times for help exposing corruption in Jefferson co Mo. Courts I have tried for 2 yrs to get a quiet title case heard they do not have a judge to hear it. In the meantime I lost my home due to the 2 yrs. I have continually asked for a change of venue or a change of judge and have been denied the request 5 times, I can prove collusion and corruption. They will not allow me to have the case moved,what can I do

Mary squire

Mo.courts refuse to acknowledge federal laws...by reminding me no one has told you we are not federal we are state,my civil rights to due process have been denied, every attempt to have my case moved denied, change of venue and change of judge denied,on a civil matter. Threats by judges, 2 yrs of being told they don't have a judge to hear my case but refusing to allow me to have the case heard in another court.Corruption,and Collusion ,is obvious,

Anonymous

INNOCENT until PROVEN guilty. I do Not want an innocent person incarcerated while the real criminal is left out to repeat crime. If there is only one piece of evidence in favor of the accused it must be used. We should not encourage False accusations. Accusations need to be Thoroughly investigated for both the accuser and the accused. The justice system seems to investigate and collect as much evidence as they can to convict with no cost to the accuser yet the accused has to pay thousands of dollars for any one to lift a finger to gather information and evidence that could possibly clear them or prove their innocence. Where is the justice in that?

Anonymous

The ACLU cares about due process now? Except if it applies to title 9. I used to be a regular donor and supporter of the ACLU but now it has been infected with a gross misunderstanding of its mission by conflating it with a far leftist agenda. There is NOTHING about the mission of the ACLU as originally understood that would suggest it should fight against defendants' rights in title 9 cases. Yet it does so anyway. The organization is dead to me. I just hope some new organization will actually take up the mission of supporting civil rights and liberties regardless of political leaning.

Source: https://www.theatlantic.com/ideas/archive/2018/11/aclu-devos-title-ix/576142/

Anonymous

Marsey's Law sounds like The Inquisition part 3, or maybe it is just a continuation of The Inquisition, w/a new disguise.

Anonymous

This is the stuff the ACLU should be working on, not restroom use.

Anonymous

The criminal "justice" system is a joke the 5th amendment is a joke. But we need to prevent it from becoming an even bigger joke. What we need is laws strengthening the 5th amendment protections. And statues of limitations on how long you can wait to file a complaint and bring charges against someone.

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