Marsy’s Law: State constitition the wrong place to add crime victim protections

By JIM BROOKS
Nelson County Gazette / WBRT Radio

Monday, Nov. 5, 2018 — The Marsy’s Law amendment on Tuesday’s ballot — and the heart-wrenching commercials in support of it — have generated a tremendous amount of interest, as well as raised a number of questions.

Marsy’s Law would amend the Kentucky constitution to create specific constitutional rights for crime victims. Sound’s like a much-needed provision, doesn’t it?

But Kentucky already has the Kentucky Crime Victim Bill of Rights in place, which gives crime victims a right to information on compensation, treatment programs, the victim’s participation in the criminal justice process; information on the arrest of the accused and how to register for notifications on the accused’s status; information on how they may be protected from intimidation, harassment, and retaliation; prompt updates on judicial proceedings; and to submit a written victim impact statement to the court.

Tech company billionaire Henry Nicholas has largely funded efforts to promote Marsy’s Law in Kentucky. The law is named for his sister, who was murdered in 1983 by her ex-boyfriend. The campaign has spent $4.59 million this year to promote Marsy’s Law alone.

If Kentucky has these protections in place for the benefit of crime victims, why the expensive ad campaign in support of Marcy’s Law?

The intent of Marcy’s Law is honorable; however, making changes to the state’s constitution can create more problems than it solves. The Crime Victim Bill of Rights is codified in state law, not in the state’s constitution. Because it is a law, the General Assembly can tweak the law or make changes to it if revisions are needed.

Sometimes a law can create “unintended consequences,” or unforeseen problems that were either overlooked or not considered when the law was originally written. This happens from time to time in the General Assembly, and our legislators eventually make the needed corrections.

Correcting the same kind of “unintended consequences” are not so easy to correct if contained in a constitutional amendment.

In this case, the amendment was be redrafted, approved by the General Assembly to be placed on the ballot, and the approved by voters. The process is the same to make any changes or corrections to any constitutional amendment. This is why I believe making changes to the state constitution should be few and far between, and carefully written when necessary.

The unintended consequences have hit some states hard that have already added Marsy’s Law to their state constitution.

South Dakota voters approved adding Marsy’s Law to its state constitution in 2016, and they have first-hand knowledge of those unintended consequence.

According to a story published by the Marshal Project, in South Dakota following the law’s passage:

“prosecutors spent hundreds of thousands of dollars beefing up staff to find victims of low-level misdemeanors, such as vandalism or shoplifting­. Defendants have spent additional days in jail because the prosecutor can’t locate victims in time for an arraignment, according to prosecutors and defense attorneys. The new law “sounded good, but it didn’t end up being what was advertised,” Mark Mickelson, speaker of the South Dakota House of Representatives.”

In North Carolina — a state whose votes will also consider a Marsy’s Law constitutional amendment Tuesday — the American Civil Liberties Union (ACLU) of North Caroline and Democrats in the state legislature have voiced their opposition to the law.

The ACLU opposes Marsy’s Law and calls it “a misguided set of empty promises” that would cost North Carolina taxpayers $30 million a year to implement.

In Iowa, another state that will consider Marsy’s Law, its ACLU pointed out that some of the unintended consequences the law could bring include much higher costs of the judicial process, and strain already underfunded resources available for victims and the services they need.

Approval of Marsy’s Law in Kentucky could saddle the state’s judicial system with constitutionally mandated duties — and expenses — that no one could predict. The more responsible way for the judicial process to better serve crime victims is by improving the processes and procedures that are already Kentucky law.

Technology billionaire Henry T. Nicholas has largely funded the efforts to get Marsy’s Law passed in every state and is pushing for it to become part of the U.S. Constitution.

According to a story in the Nov. 4, 2018 Louisville Courier-Journal, the Kentucky campaign for Marsy’s Law has has spent $379,978 on lobbying the General Assembly since 2015 and has employed 18 lobbyists.

In Kentucky, he has spent $4.59 million this year in the Marsy’s Law campaign.

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